Majority
p. 791FLYNN v. TINNEY. (Supreme Court, Special Term, New York County. August 10, 1899.)
Headnote
1. Executors and Administrators — Security for Costs — Discretion of Court.Whenever a resident or nonresident executor or administrator is plaintiff, an application for security for costs is addressed to the court’s discretion, under Code Civ. Proc. § 3271, allowing the court to require one. suing as executor or administrator to give such security.
2. Same.
Where one in good faith brings an action as executor or administrator, an application for security for costs, under Code Civ. Proc. § 3271, allowing the court to require one suing as executor or administrator to give security, should be denied.
Action by one Flynn, as administrator, against Bernard J. Tinney. Motion for security for costs. Denied.
Bernard J. Tinney, in pro. per.
Norwood & Dilley, opposed.
Section 3271 of the Code applies to this case. Whenever an executor or administrator is plaintiff, whether resident or nonresident, the application is addressed to the discretion of the court (McDougal v. Gray [Sup.] 4 N. Y. Supp. 74 ; Hall v. Waterbury, 5 Abb. N. C. 356 ), and when it appears, as it does here, that the action is brought in good faith, the application for security for costs should be denied (Ryan v. Potter, 4 Civ. Proc. R. 80).
The motion is accordingly denied, with $10 costs to abide event.