Majority
p. 397Mary J. Hubbard, Resp’t, v. Benjamin A. Gicquel, App’lt. (City Court of New York General Term, Filed March 1888.)
Headnote
„ Costs—Secubity bob—Undertaking' by attobney.Where the plaintiff’s attorney gives an undertaking as security for costs for a non-resident plaintiff, the attorney cannot be proceeded against summarily to compel their payment, as the remedy is on the undertaking. An undertaking executed by an attorney is not void.
Appeal from order denying motion to compel plaintiff’s attorney to pay costs awarded against a non-resident plaintiff.
J. P. Solomon, for app’lt; James Ridgway, for resp’t.
The defendant obtained an order requiring the plaintiff to file security for costs on the ground of non-residence. The plaintiff thereupon filed security.
p. 398
The bond was signed by the plaintiff’s attorney, and while irregular on that account, this objection to it was not taken, and the bond was approved of in one of the ways pointed out by the Code. The bond is in the form required by section 3273 of the Code, and its effect is to relieve the attorney from the summary remedy allowed in cases in which no bond is filed, and to limit the defendant in his remedy to an action on the bond. The bond is a valid obligation and not void because signed by an attorney as surety. See cases cited in Weeks on Attorneys, section 119. For these reasons and those assigned by the court below the order denying the defendant’s application for an order requiring the attorney to pay the costs awarded against his client will be affirmed with costs, but without prejudice to any action which the defendant may bring against the attorney upon the undertaking filed herein.
Browne and Ehrlich, JJ., concur.