Majority
p. 406(27 Misc. Rep. 120.) PODMORE v. SOUTH BROOKLYN SAV. INST. (Supreme Court, Special Term, New York County. April 11, 1899.)
Headnote
Actions by Administrators—Security for Costs.An administrator prosecuting an action in good faith, and with reasonable prospect of success, will not be required to give security for costs on the ground that the estate is without assets.
Action by John Podmore, administrator of the estate of Annie Podmore, deceased, against the South Brooklyn Savings Institution. Defendant moves for'security for costs. "
Denied.
Arnold & Green, for the motion.
Hymes, Woytisek & Schaap, opposed.,
In view of the affidavits filed in support of the plaintiff’s proceedings in the surrogate’s court, I am inclined to believe that the action is prosecuted with a reasonable prospect of success, and that a substantial issue exists as to the validity of the pay
p. 407
ment made by defendant in recognition of the claim of a- gift causa' , mortis. It appeal’s that the plaintiff has brought the action in good! faith, and, under the authorities, the fact that the estate is without j assets is not alone sufficient to call for an order for security ion-costs. Rut herford v. Town of Madrid, 77 Hun, 545 , 28 N. Y. Supp. 923 ; Hale v. Mason, 86 Hun, 499 , 33 N. Y. Supp. 789 ; Brown v. Dean, 83 Hun, 613 , 31 N. Y. Supp. 1126 ; Fagan v. Strong, 19 Civ. Proc. R. 88, 7 N. Y. Supp. 919 ; Sullivan v. McManus, 12 N. Y. Law J. 297; Ridgway v. Symons, 14 Misc. Rep. 78 , 35 N. Y. Supp. 197 ; Cahn v. Sugenheimer (Sup.) 57 N. Y. Supp. 406.
For these reasons, the motion to compel the administrator to give- - security for costs is denied.