Majority
p. 128Albert W. Gates et al., Resp’ts, v. Willard W. McDonald et al., App’lts. (Supreme Court, General Term, First Department, Filed June 1, 1891.)
Headnote
Costs—Undertaking for—.Order—Code Crv. Pro., § 3272.An order requiring plaintiffs to give security for costs in the sum of ,$250, or ,a deposit of that amount, e^h^usts the' power of the court so far as the original application is concerned, which ,it -has under Code Civ. Pro., § 3272, to compel the giving an undertaking for costs. " ;
Appeal from order .vacating order requiring plaintiff to give security for costs. The batter .order was granted on motion of de: fendant Henry ;M. McDonald, and required plaintiffs .to give security in the sum of $250 for his benefit. The order vacating it directed “.that ¿the plaintiffs he ..and they ¡hereby are required, within two days from the entry of this order, either to pay into .court the sum of -two hundred and fifty dollars, to be applied to the payment .of the costs, if any, awarded ¡against them, or, at their election, to file with the .clerk of this , court ,,an undertaking, to be executed to the defendants by one or more sureties, -to the effect that plaintiffs vdbl pay, upon demand, tp.the defendants, all costs which may be awarded to them, or ¡any of -them, in the action, not exceeding .the sum specified in the undertaking, -which must be at least two hundred, and fifty dollars." ,
Jas. Byrne, for app’lts ; W. F. Severance, for resp’ts.
—Section 3272 of the Code .the court in the first instance tto grant simply an order for an undertaking in the sum of $250 or a deposit of that amount as security for costs.
That section was complied with by the order which was giadd in the court below, and the power of the court was then exhausted, so far as the original application was concerned. ,
We think, therefore, -that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., and Patterson, J., concur.