Schmidt v. Eiseman — 58 N.Y. St. Rep. 133

Majority

p. 133

Magdalena Schmidt, Resp’t, v. Peter Eiseman, as Executor, etc., App’lt.

(Brooklyn City Court, General Term,

Filed December 26, 1893.)

Headnote

Costs—Security for—Executors.

Security for costs in actions by or against executors may be granted or refused, in the direction of the court, though there is no proof of bad faith.

Appeal from an order denying a motion to require plaintiff to give security for costs.

Jaclcson & Burr, for app’lt; Charles J. Patterson, for resp.’t.

This action was brought to recover for labor and services alleged to have been performed for Gertrude Sober, of whose estate.the defendant is executor. Defendant applied at special term for an order requiring the plaintiff to give security for costs, under Code, § 3271. The motion was denied, and an appeal was thereupon taken. Security for costs, under this section, may be granted or refused, in the discretion of the court, although there is no proof of bad faith. Tolman v. Syracuse, B. & N. Y Railroad Co., 92 N. Y. 353 . The counsel for appellant invokes the rule suggested in Caccavo v. Rome, W. & O. Railroad Co., 13 N. Y. Supp. 884 ; 36 St. Rep. 932 ; that, if poverty is conceded, the party must satisfy the court that good cause of action is set forth. Assuming the correctness of the rule, we think that the plaintiff in this case did show a fair probability of a recovery. In the case cited the allegations in the complaint were made on information and belief, and the sources of the informa

p. 134

tion were not set forth; and in the case before us the plaintiff states in her complaint a good cause for action, and sustains the same by an affidavit, which must have been made of her own knowledge. The discretion of the court below has not been abused.

Order affirmed, with $10 costs and disbursements, to be taxed by the clerk.

Cases cited

Tolman v. Syracuse, Binghamton & New York Railroad 92 N. Y. 353 N.Y. p. 133