Fessenden v. Blanchard — 15 N.Y. St. Rep. 871

Majority

p. 871

James D. Fessenden as Ancillary Administrator, etc., Resp’t, v. Alvah S. Blanchard et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Executors and administrators—Action by—Court may in its discretion ORDER PLAINTIFF TO GIVE SECURITY FOR COSTS—DETERMINATION WILL NOT BE DISTURBED ON APPEAL.

In an action brought by an executor or administrator, the court may .in its discretion require the plaintiff to g;ive security for costs, and an appellate court will not usually interfere with a refusal to exercise such discretionary power.

Harriman & Fessenden, for resp’t; Hobbs & Gifford, for app’lts.

—The plaintiff is the ancillary administrator of Thomas W. Killman, deceased. Killman was a resident of the state of Maine, and letters of administration were issued there to Thomas P. Shule. The plaintiff, as an

p. 872

ancillary administrator, has brought this action to enforce a claim against the defendant. The defendant appeared at special term to obtain security for costs. The application was denied and this appeal is brought. The plaintiff is not a non-resident of the state, and therefore does not come within the enactment in the Revised Statutes, and now contained in section 3268 of the Code. The plaintiff is to be treated as an administrator. He is appointed under our laws and has given the security for the faithful performance of his trust. The general rule is that parties may put their claim before competent court without any obligation to secure costs to the opposite party in case of failure. In action, brought by executor and administrator, discretionary power is given to courts to require a plaintiff to give security for costs. It is not usual for an appellate court to interfere with a refusal to exercise a discretionary power. In the present case the order to compel security was properly denied. The claim is on its face meritorious. The defendant got a large sum for almost nothing, and if the plaintiff’s claim is right, he ought to refund it to the estate of the deceased. This will be determined on the trial. The plaintiff is liable like other administrators in case of failure.

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.