Brackett v. Griswold — 12 N.Y. St. Rep. 402

Majority

p. 402

Edgar T. Brackett, as Adm’r, etc., App’lt, v. Chester Griswold, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December, 1887.)

Headnote

Practice — Additional security for costs — Right to, merged in JUDGMENT.

The trial of an action resulted in a judgment for the plaintiff, which was duly entered, and thereafter the plaintiff made a motion for additional security for costs. Held, that the right to have additional security, if any existed, became merged in the judgment. That so long as the judgment stood unreversed, such an order was neither necessary or proper.

Wm. C. Holbrook, for app’lt; A. Pond, for resp’t.

This is an appeal from an order of the special term denying plaintiff’s motion for additional security. Prior to the entry of the order appealed from, and of necessity, therefore, before the appeal was taken, the action in which such motion was made, came on for trial at the circuit and resulted in a judgment in favor of the plaintiff, which was duly entered on the 13th day of June, 1887. The appeal herein was'taken subsequently, and on the 28th day of June. 1887.

So long as the judgment stands unreversed, there is no action pending making such an order as the appellant desires either necessary or proper. The presumption of law being that the judgment ought to stand. Flint v. Van Deusen, 24 Hun, 440 -442. The right to have additional security, if any existed, became merged in the judgment entered in the action. Health Department v. O’Reilly, 18 Weekly Dig., 255. The present appeal involves no substantial! right, and the respondent’s motion to dismiss should be granted, with ten dollars costs and printing disbursements.

Fish, J., concurs.