Kamerman v. Eisner & Mendelson Co. — 49 N.Y.S. 1111

Majority

p. 1111

(22 Misc. Rep. 554.)

KAMERMAN v. EISNER & MENDELSON CO.

(City Court of New York, General Term.

January 31, 1898.)

Headnote

Secubity for Costs—Notice of Motion.

An application for an order requiring security for costs, if made under Code Civ. Proc. § 3271, and consequently addressed to the discretion of the court, must be made upon notice.

Appeal from special term.

Action by Sarah Kamerman, bv her guardian ad litem, against Eisner & Mendelson Company. From an order vacating an order directing plaintiff to file security for costs, defendant appeals.

Affirmed.

Argued before SCHUCHMAN and O’DWYER, JJ.

F. V. Johnson, for appellant.

Langbein Bros. & Langbein, for respondent.

The order directing the plaintiff to file security for costs was made ex parte. This was irregular. The irregularity is specified in subdivision 6 of the moving papers. The order was therefore properly vacated. Under section 3268 of the Code, the defendant, as an absolute right, may require the plaintiff to file security for costs, and, under section 3272, the court must, in that case, make the order, and can make it ex parte. When, however, the application is made under section 3271, which reads: “In an action brought by * * a person expressly authorized by statute to sue, * * the court may, in its discretion, require the plaintiff to give security for costs,”—then it must be made, on notice of motion, to the court. The plaintiff herein is a person expressly authorized by statute to sue (section 468), and this case falls, therefore, within section 3271. Wood v. Blodgett, 49 Hun, 64 , 2 N. Y. Supp. 304 ; Swift v. Wheeler, 46 Hun, 580 ; Healy v. Railroad Co., 1 Civ. Proc. R. 15; Ryan v. Potter, 4 Civ. Proc. R. 80. Order appealed from affirmed, with $10 costs and disbursements..

O’DWYER, J., concurs.