Reck v. Phenix Insurance — 5 N.Y.S. 543

Majority

p. 543

Reck v. Phenix Ins. Co.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

■Costs—Security for—Discretion op Trial Court.

Though plaintiff has recovered a verdict for a large amount, yet, no judgment having been entered thereon, and the trial court having ordered defendant’s exceptions to be heard at general term in the first instance, an order made by the trial court, requiring plaintiff in the mean time to give additional security for costs, will not be interfered with.

Appeal from special term, Hew York county.

This was an action by Fredrick Reck, a non-resident, against the defendant company, in which plaintiff had a verdict for $10,647.05. Subsequently, on defendant’s application, the special term made an order requiring plaintiff to give additional security for costs, from which order plaintiff appeals.

Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.

J. A. Shoudy, for appellant. George A. Blaok, for respondent.

Should the case finally go against the plaintiff, it is clear from the appeal book that the amount of security heretofore filed would not be sufficient to indemnify the defendant against costs. It is true that the plaintiff has, at the end of the fourth trial, obtained a verdict for upwards of $10,000. Ho judgment, however, has been entered thereon, but the learned trial judge directed the exceptions to be heard at the general term in the first instance. There is therefore no determination by the court that the plaintiff is right in his contention. It is true that the verdict carries with it every intendment in favor of the plaintiff’s ultimate success, so far as the facts are involved, but there was doubtless in the mind of the learned judge a doubt as to some important questions of law involved, and hence it appeared that the case was not so clearly in favor of the plaintiff as to warrant a judgment in his favor until the general term had so adjudicated. Under these circumstances, we are not disposed to interfere with the exercise of the discretion of the special term in requiring additional security to be given. It follows that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.