Caccavo v. Rome, Watertown & Ogdensburg Railroad — 36 N.Y. St. Rep. 932

Majority

p. 932

Andrea Caccavo, Adm’r, App’lt, v. The Rome, Watertown & Ogdensburg R. R. Co., Resp’t.

(New York Superior Court, General Term,

Filed March 2, 1891.)

Headnote

Costs—-Security for—Administrators.

Where the allegations of the complaint in an action brought by an .administrator are upon information and belief and the sources of information are not given, and such allegations are controverted by the affidavits used on the motion, a proper case is presented f^r the exercise of the discretion of the court as to requiring security for costs, especially upon concession of pecuniary irresponsibility.

Appeal from order requiring plaintiff to file security for costs.

Edward J. McGuire, for app’lt; Thomas Spratt, for resp’t.

This is an appeal from an order requiring the to file for costs.

By § 3271, Code of Civil Procedure, it is provided that in an action brought by or against an administrator in his representative ■capacity, the court may, in its discretion, require the plaintiff to give security for costs. In the present case the court did so require, and upon this appeal the only question presented is whether any grounds existed for the exercise of a discretion.

In order to determine this question, it is well to inquire into the general principles upon which the Code provisions as to security for costs were based.

It seems to have been deemed wise by the codifiers to assume the pecuniary responsibility of plaintiffs, except in certain specified cases where, from the nature of the case, irresponsibility was apparent, or deemed proper to be assumed. In the excepted cases tfie plaintiffs were required by the Code provisions to give security for costs, for instance, as of the class first referred to, an infant whose guardian ad litem had not given security, and in the second ■class, among others, non-residents and foreign corporations. Where irresponsibility was certain,security was generally required; the right of application for leave to sue in forma pauperis, however, being accorded. In a case such as the present, it seems in harmony with the policy adopted by the codifiers to assume the responsibility of the plaintiff. If irresponsibility is, however, conceded, it would naturally follow that this circumstance would suffice to make aprima facie case for the requirement of security. It may be sufficient to meet this case that an administrator satisfy the court that he has a good cause of action. In the case pre-.

p. 933

sented, sufficient appears to make it unnecessary to pass upon the question above referred to.

It seems that the allegations of the complaint are upon information and belief, and that the court was not informed of the sources of the information. This fact, in view of the specific statements in the affidavits submitted on behalf of the defendant as to the circumstances of the accident, supplied sufficient ground for the exercise of discretion by the learned judge below.

Upon the concession of pecuniary irresponsibility, it certainly became the duty of the plaintiff upon the motion to satisfy the court that he had a good cause of action, and this, it must be assumed, he failed to do.

Order affirmed, with ten dollars costs.

Sedgwick, Oh. J., and Truax, J., concur