Reck v. Phœnix Insurance — 24 N.Y. St. Rep. 646

Majority

p. 646

Frederick Reck, App’lt, v. The Phœnix Insurance Company, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

Costs—When order | requiring additional security not interfered with.

An order of the trial court requiring plaintiff to give additonal security for costs will not be interfered with where a plaintiff has recovered a verdict for a large amount, no judgment having been entered, and the trial court having ordered the defendant’s exceptions heard at the first instance at the general term.

Appeal from ail order of the general term, requiring the plaintiff to give additional security for costs, and staying his proceedings in the meantime.

J. A. Shoudy, [for app’lt; George A. Blade, for resp’t.

Should the case finally go against the plaintiff, it is clear, from the appeal book, that the amount of security heretofore filed, would not be sufficient to indemnify the defendant against costs. It is true, that the plaintiff has, at the end of the fourth trial, obtained a verdict for upwardsjof $10,000. No judgment, however, has been entered thereon, but the learned trial judge directed the exceptions td be heard at the general term, in the first instance. There is, therefore, no determination by the court that the plaintiff is right in his contention. It is true, that the vqrdict , carries with it every intendment in favor of the plaintiff’s ultimate success, so far as the facts are involved, bu| there was doubtless in the mind of the learned judge a doubt as to some important questions of law involved, and hence it appeared that the case was not so clearly in favor of the plaintiff as to warrant a judgment in his favor until thje general term had so adjudicated.

Under these circumstances, we are not disposed to interfere with the exercise of the discretion of the special term, in requiring additional security to be given.

It follows that the order appealed from should be affirmed, with ten dollars costs and disburements.

Van Brunt, Ch. J., and Bartlett, J., concur.