Tracy v. Dolan — 52 N.Y.S. 351

Majority

p. 351

(31 App. Div. 24.)

TRACY et al. v. DOLAN et al.

(Supreme Court, Appellate Division, First Department

June 10, 1898.)

Headnote

Additional Security for Costs.

Upon a motion to compel the plaintiffs in an action to give additional security for costs, it appeared that the original undertaking had been given with only one surety, that he had since died, and facts were stated from which it might be inferred that his estate was insufficient to secure the payment of the amount specified in the undertaking. Held, that under Code Civ. Proc. § 3276, the motion should have been granted.

Appeal from special term.

Action by Albert F. Tracy and Robert C. Davey, executors of William L. Evans, against Annie Dolan and others. From an order denying defendants’ motion to compel plaintiffs to give additional-security for costs, defendants appeal.

Reversed.

Argued before BARRETT, RUMSEY, McLAUGHLIN, and IN-GRAHAM, JJ.

Campbell E. Locke, for appellants.

Nelson Shipman, for respondents.

This action was commenced in October, 1894, for the partition of certain real estate. On the 7th of November following, defendants having made a motion for that purpose, the plaintiff, a nonresident, gave security for costs by filing an undertaking with one surety. In August, 1897, the plaintiff died, and by an order duly made the action was revived and continued in the name of his executors, both of whom were then, and now are, nonresidents. On January 27, 1898, the surety upon the undertaking-filed died, and from the facts stated in the moving papers it may fairly be inferred that his estate is insufficient to secure the payment of the amount specified in the undertaking. Under these circumstances the defendants made a motion to compel the plaintiffs to give additional security for costs. The motion was denied, and defendants appealed.

We think the motion should have been granted. Section 3276 of the Code of Civil Procedure expressly provides that:

“At any time after the allowance of an undertaking * * * the court or a judge thereof, upon satisfactory proof, by affidavit, that the sum specified in the undertaking * * * is insufficient; or that one or more of the sureties have died, or become insolvent, or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant, must make an order requiring the plaintiff to give an additional undertaking. * * *”

The death of the only surety upon the undertaking filed was not denied, nor was there any denial of the allegation in the moving papers which indicated the insolvency of his estate. Facts were thus sufficiently established to entitle the defendants to an additional undertaking.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, requiring plaintiffs to furnish an additional undertaking in the sum of $750. All concur.