Winchester v. Browne — 6 N.Y.S. 913

p. 913

Winchester v. Browne.

(Supreme Court, General Term, First Department.

July 9, 1889.)

Headnote

Costs on Appeal.

When an order for a substitution of an undertaking is granted, and the surety fails to justify, the order on appeal should be affirmed, but without costs. Daniels, J., dissenting.

Appeal from special term, New York county.

Appeal from an order allowing an undertaking as security for costs, executed by the Fidelity & Casualty Company, to be substituted for a preceding undertaking proposed to be given in the action.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Henry Schmitt, for appellant. A. Walker Otis, {T. S. Moore, of counsel,) for respondent.

We see no error in allowing the substitution of the undertaking in question, but as, in our judgment, the substituted surety has failed to justify, the order should be affirmed, without costs.

Brady, J., concurs.

(dissenting.) I think the order brought up by this appeal should also be reversed. It is unnecessary for the disposition of this appeal to enter into a critical examination of the financial condition of the company executing the undertaking. That has already been done in considering an appeal from an order approving the justification of the company as a party to' the undertaking. Its financial condition has not been considered to be sufficient to justify that approval, and for that reason this undertaking should not be allowed to be substituted in the place of that which it was proposed by the plaintiff should be filed in the action. The order allowing this substitution should be reversed, but without costs, as they have been provided for in the other appeal, but with the disbursements which may have been incurred and made in this appeal.