Butler v. Jarvis — 26 N.Y. St. Rep. 841

Majority

p. 841

Prescott Hall Butler, App’lt, v. Nathaniel Jarvis, Jr., individually, and as Committee, Resp’t.^[1]

(Court of Appeals,

Filed October 29, 1889.)

Headnote

Appeal — Dispensing with security — Code Civ. Pro., § 1313.

Where a judgment has been obtained against a committee of a lunatic’s estate individually, and is affirmed by the general term, that court cannot grant an order allowing him to appeal to the court of appeals without security, under § 1313, Code Civ. Pro. He is not “ acting in another’s right.”

Appeal from order of general term, supreme court, first department, granting leave to defendant to appeal to the court of appeals without giving security, under Code Civ. Pro. § 1312.

Stephen A. Walker, for app’lt; George W. Cotterill, for resp’t.

In 1870, the defendant was, in the city of New York, appointed a committee of Bomanjee Byramjee Colah, a lunatic, who wras a native of Bombay, India, where he died in 1882. Letters upon his estate were there issued, and subsequently the plaintiff in this action was appointed ancillary administrator by the surrogate of the county of New York. lie commenced this action against the defendant, individually and as committee, for an accounting. The action resulted in a judgment against the defendant, individually and as committee, for the sum of $76,075.87. From that judgment he appealed to the general term of the supreme court, where it was modified by reducing it to $71,874.02, and as thus modified it was in all things affirmed. The defendant, intending to appeal

p. 842

to this court, thereafter made a motion to the general term of the supreme court, under § 1312 of the Code, that the security required to stay execution on the judgment might be dispensed with or limited to $50,000, and the court made an order “ that the defendant have leave to appeal to the court of appeals without giving the security required to stay execution upon the judgment herein, and that all proceedings upon the part of the plaintiff be stayed herein, pending such appeal, but not to collect the securities deposited for the benefit of the plaintiff.”

From that order the plaintiff has brought this appeal, and it is claimed on his behalf that, under the section of the Code referred to, the general term had no authority to grant the order. That section provides as follows: “ Where an appeal is taken as prescribed in title second or fourth of this chapter, the court in or from which the appeal is taken, or where an appeal is taken as prescribed in title third or fifth of this chapter, the court to which the appeal is taken may, in its discretion, make an order, upon notice to the respondent, dispensing with or limiting the security required to stay the execution of the judgment or order appealed from, as follows:

“ First Where the appellant is an executor, administrator, trustee or other person acting in another’s right, the security may be dispensed with or limited in the discretion of the court.

“ Second. The aggregate sum in which one or more undertakings are required to be given may be limited to not less than $50,000, where it would otherwise exceed that sum.”

The defendant plainly does not bring himself within this section. In defending the action and bringing the appeal he is not acting “ in another’s right.” The plaintiff is acting in the right of those who have succeeded to the estate of the lunatic. The defendant is not acting in their right; but he is acting in hostility to them to subserve his own interests. The judgment appealed from is against him individually and as committee, and he is bound in his own right to the extent of his property or ability to pay it. To bring himself within this section he should have shown that he was defending the rights of the lunatic or his representatives, and that he was acting in their right and not in his own.

The order of the general term should, therefore, be reversed, and the motion denied, with costs of the appeal and ten dollars costs of the motion.

A motion was made here on behalf of the defendant to dismiss the appeal. We have carefully considered that matter. There are no grounds for dismissing the appeal, and this motion should be denied, with ten dollars costs.

All concur.