Murphy v. Manhattan Brass Co. — 44 N.Y. St. Rep. 834

Majority

p. 834

John Murphy, by Guardian, Resp’t, v. The Manhattan Brass Co., App’lt.

(New York Superior Court, General Term,

Filed March 14, 1892.)

Headnote

Security for costs—Infants.

Where the plaintiff is an infant whose guardian ad litem has not given security for costs and he has not obtained leave to sue as a poor person, the defendant has a right to require security to be given.

Appeal from order denying defendant’s motion that plaintiff file security for costs.

William Q. Lathrop, Yr., for app’lt; Adam Finch, for resp’t.

The defendant’s right to security for costs depended upon § 3268, Code Civil Procedure, as amended by chapter 170, Laws of 1891. It says that a defendant may require security for costs to be given where the plaintiff is, when the action was commenced; subd. 5, an infant whose guardian' ad, litem had not given such security, excepting as otherwise provided in §§ 459' .and 469 of the act. These sections refer to the right of an infant to obtain leave to prosecute as a poor person.

As in this case it did not appear that the guardian ad litem had filed security for costs or that the plaintiff had obtained leave to sue as a poor person, the defendant’s motion should have been .granted.

The order appealed from is reversed and defendant’s motion below granted, with ten dollars costs.

Sedgwick, Ch. J., Dugro and Gildersleeve, JJ., concur.