Upson v. Hesselson — 69 N.Y.S. 684

Majority

p. 684

UPSON v. HESSELSON.

(Supreme Court, Appellate Division, First Department.

April 4, 1901.)

Headnote

.'Security for Costs—Representative or Individual Character of Plaintiff.

In an action entitled, “W. F. U., Receiver of B., H. & Co., against S. H.,” defendant is not entitled to an order requiring plaintiff to give security for costs, where the action is brought in plaintiff’s own right individually, and not in his right as receiver.

Appeal from special term, New York county.

Action by William F. Upson, receiver, against Simon Hesselson. From an order denying a motion to compel plaintiff to give security for costs, defendant appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHLIN, and PATTERSON, JJ.

Gustavus A. Rogers, for appellant.

Francis J. McLoughlin, for respondent.

The appellant has not seen fit to print the summons and complaint in this action, and we have no other information with respect to the cause of action than is given by the affidavits. Mr. Upson testifies that the action is actually entitled, “William Ford Upson; Receiver of Engel, Heller & Co., Plaintiff, against Simon Hesselson, Defendant,” and that he has brought the suit in his own right individually, and not in his right as receiver. That being so, the defendant clearly was not entitled to an order requiring the plaintiff to give security for costs.

For that reason, this order must be affirmed, with $10 costs and disbursements. All concur.