Cahn v. Sugenheimer — 57 N.Y.S. 406

Majority

p. 406

CAHN v. SUGENHEIMER.

(Supreme Court, Special Term, New York County.

April, 1899.)

Headnote

Actions by Receivers—Security for Costs.

A receiver bringing action by leave of court will not be required to give security for costs on the ground that he has no funds in his hands, unless it is shown that the action was brought heedlessly or in bad faith, or that success is improbable.

'Action by one Cahn, as receiver, against one Sugenheimer. Defendant moves for security for costs.

Denied.

Blumenstiel & Hirsh (Emanuel Blumenstiel, of counsel), for the motion.

S. Morrill Banner, opposed.

The application is based solely upon the ground thát the receiver has no funds in his hands. Under the authorities this is insufficient to authorize the granting of an order requiring him to give security for costs. Such an order rests in the discretion of the court, and the power will not be exercised, unless in addition to the fact of insolvency it is shown that the action has been brought heedlessly or in bad faith, or that it is improbable that the plaintiff will succeed. Hale v. Mason, 86 Hun, 499 , 33 N. Y. Supp. 789 ) Ridgway v. Symons, 14 Misc. Rep. 78 , 36 N. Y. Supp. 197 .

, The present action was brought by leave of court, and, there being no charge of bad faith on the part of the receiver, the motion should be denied, with $10 costs.