Republic of Honduras — 13 N.Y. St. Rep. 570

Majority

p. 570

Republic of Honduras, App’lt; Marco Aurelio Soto, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 23, 1888.)

Headnote

Practice—Security for costs—Additional security—Effect op deposit op money—Code Civ. Pro., § 3276.

The plaintiff was ordered to give security for costs in the amount of $250, it being a non-resident, and it deposited that amount in the court instead of giving an undertaking. Thereafter the court was satisfied by affidavit that the sum so deposited was insufficient. Held, that the court must order further security to be given. That Code Civ. Pro., § 3276, was intended to apply .to the case of a deposit in lieu of an undertaking.

Appeal from an order increasing the amount of security for costs.

Philip J. Joachimson, for app’lt; Emmet R. Olcott and William Q. Judge, for resp’t.

An order having been made for the plaintiff to file security for costs as a non-resident, with an

p. 571

order to show cause, upon the return of such ' order the learned judge held that he could only in the first instance, exact security in the amount of $250, and that the defendant must make another motion if he wanted increased security.

The plaintiff deposited $250 in the court as security for costs, instead of giving an undertaking therefor.

Subsequently the defendant moved for additional security, which motion was granted, and from the order thereupon entered this appeal is taken.

It is.claimed that the order appealed from is entirely without jurisdiction because the only case in which additional security can be required is one in which an undertaking for costs has been given, because by section 3276, of the Code, it is enacted that at any time after the allowance of an undertaking, the court or a judge thereof, upon proof by affidavit, that the sum specified in the undertaking is insufficient, must make an order requiring the plaintiff to give an additional undertaking. It is, however, clear that the legislature intended this provision to apply to the case of a deposit in lieu of an undertaking, because by the last clause of section 3276, the provisions relating to a deposit contained in section 3272 are made to apply to an order for additional security made pursuant to section 3276.

There is no reason if the amount deposited is insufficient, that the defendant should be deprived of his right to additional security which he should have, had an undertaking been given. The whole tenor of the section is, that the •deposit shall take the place of an undertaking and be subject to the same conditions. The order appealed from should be affirmed with costs.

Brady and Daniels, JJ., concur.