Majority
p. 714(21 Misc. Rep. 541.) DENEHY v. McCLOUD. (City Court of New York, General Term. October 26, 1897.)
Headnote
Security for Costs.The statute (Code Civ. Proc. § 3271) relating to security for costs in actions by or against executors, etc., does not apply to an action commenced by a decedent, and revived in favor of his personal representative.
Appeal from special term.
Action by Ellen Denehy against Margaret McCloud. On the death of plaintiff, David Denehy, administrator, was substituted as plaintiff. From an order rendered requiring security for costs, plaintiff appeals. Reversed.
Argued before FITZSIMOHS, GONE AN, and SCHU OHM AN", JJ.
Edward Mandel, for appellant.
John Whalen, for respondent.
This action was commenced by the plaintiff’s intestate, and upon her death it was, by order, revived and continued by the plaintiff as administrator. An order was made after the trial of the action requiring the plaintiff to file security for costs up to and including the trial, and for costs of the appeal. In our opinion, the order made was wrong. Section 3271 of the Code of Civil Procedure, under which authority is given to require such security, does not apply to an action commenced by a decedent, and revived in favor of his personal representatives. Sullivan v. Machine Co., 27 Hun, 270 .
The order is reversed, with costs.