Majority
p. 354JAMES L. BENNETT, as Assignee, etc., of CHARLES N. GOBLE, Appellant, v. ADDISON S. GOBLE and Others, Respondents.
Headnote
Practice - — power of the court to compel an assignee to gire security for costs— Code of Civil Procedure, sea. 3271.The power conferred upon the court, by section 3271 of the Code of Civil Procedure, to require an assignee for the benefit of creditors to give security for costs, iu an action brought by him, is a discretionary power, which should not be exercised unless reasonable grounds exist therefor.
Appeal from an' order made at a Special Term, upon notice to the plaintiff, directing him to file a bond in a penalty of $1,000, or, at his option, to deposit that amount with the clerk as security for costs.
The - action was brought by a general assignee of one Charles N. Goble to partition lands of his father, George S. Goble, who died, leaving a last will and testament, against Charles N., William S., George S. and Addison S. Goble, his children, and Sarah J. Goble, his widow. Byhis will the testator gave and devised all his property to his executors in trust, to sell the same when they should deem it to be to the best advantage of his said estate to do so, and to divide the proceeds equally among said four children. .
A. J. Perry, for the appellant.
Jacob Fromme, for me respondent.
Unless in every case in which an assignee is plaintiff it is proper to require security, there do not seem to be sufficient facts in the case at bar to justify the order requiring the plaintiff to give security in the sum of- $1,000. Security in cases of this kind is a matter of discretion, and such discretion should not be exercised against an assignee unless there are reasonable grounds therefor.
The order must be reversed, with ten dollars costs and disbursements to the appellant to abide the event.
Present — Yan Brunt, P. J., Daniels and Bartlett, J J.
Order reversed, with ten dollars costs and disbursements to abide event.