Barnes v. Seligman — 51 N.Y. St. Rep. 376

Majority

p. 376

Oliver W. Barnes, Resp’t, v. James Seligman et al., Ex’rs, Impl’d, App’lts.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Costs — Security for — Denial of.

In an action against executors for breach of an agreement by their testator, where it appeared that a judgment for costs recovered by_ defendants in a previous action remains unpaid, but the surety on appeal is good, and the plaintiff claims to be perfectly solvent, and there is a dispute as to the exact decision of the court of appeals in that case, an order denying a motion for security for costs will not be disturbed.

Appeal from order denying motion for security for costs.

George W Seligman, for app’lts; Ira Leo Bamberger and Mitchell May, for resp’t.

This action is brought against the executors of Joseph Seligrnan, deceased, and George H. Brown. The allegations of the complaint therein are that the deceased Mr. Seligrnan in his life time and George H. Brown agreed to deliver for value to the plaintiff two thousand shares of the full paid stock of the New York City Central Underground Railway Company. The relief sought is a specific performance of the contract. The executors have not yet made an answer to the complaint. This motion is made to compel the plaintiff to give security for costs under § 8271 of the Code. The motion was denied at special term. The papers do not show any abuse of the discretion of the court Brown is insolvent There has been a previous action between the same parties resulting in a judgment in favor of the defendants. The judgment was modified at general term and again in the court of appeals, but judgment still remains against the plaintiff for $1,361.51, with $117.46 costs. This judgment is unpaid, but the surety on appeal is good. The execution therein against Barnes was returned unsatisfied, but Barnes asserts that there is no other judgment against him and that he is perfectly solvent. The parties differ as to the tenor and effect of the decision of the court of appeals. Barnes says that the decision was to the effect that Seligrnan and Brown had fraudulently issued stock to Barnes. The attorney for Seligrnan denies this, but no case or opinion in .the court of appeals is presented. The § 3271 permits the court in its discretion to compel the plaintiff to file security for costs and this power exists without proof of mismanagement or bad faith. Tolman v. Syracuse, etc., R. R., 92 N. Y., 353 .

There being proof that a doubt as to plaintiff’s insolvency exists and the exact decision of the court of appeals being in dispute, and the general rule being that a plaintiff may sue without giving security, the motion was properly denied.

The order should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.