Brackett v. Griswold — 53 N.Y. Sup. Ct. 442

Majority

p. 442

EDGAR T. BRACKETT, as Administrator, etc., of SAMUEL BONNELL, Jr., Deceased, Respondent, v. CHESTER GRISWOLD, Appellant, Impleaded with Others.

Headnote

Bight to require security for costs to be given by the plaintiff — it cannot be required after the plaintiff has recovered a judgment.

Upon the hearing of this appeal, from an order denying a motion made by the defendant to require the plaintiff to furnish additional security for costs, it appeared that prior to the entry of the order appealed from the action in which the motion was made had been tried and a judgment entered in favor of the plaintiff.

Held, that the appeal should be dismissed; thatHhe presumption of law was that the judgment ought to stand, and that the right to have additional security, if any existed, became merged in the judgment entered in the action.

Flint v. Van Deusen ( 24 Hun, 440 , 442) and Heath v. <7Reilly (18 Week. Dig., 255) followed.

, Appeal from an order made at Special Term, and entered in Essex county, denying a motion made by defendant, tbat the plaintiff execute a bond for costs, on the ground that the action was not originally brought by the plaintiff.

The action was originally brought in May, 1873. by Samuel Bonnell, Jr., the plaintiff’s intestate, who, at that time, was a resident of New Jersey. Shortly after the service of ’ defendant’s answer said Bonnell, being a non resident, was required to furnish security for costs in the sum of $250. Subsequent to the execution of the

p. 443

above bond, Bonnell was required to furnish additional security for costs in the sum of $1,000, and later on still another bond as further security for costs in the sum of' $750. Bonnell having died before the action was tried, an order was made reviving and continuing the action in the name of the plaintiff, as his administrator. Thereafter the action was tried and a judgment was recovered by the plaintiff.

■ The order appealed from was served on the defendant’s attorney at the opening of the circuit at winch the action was tried.

William Q. Holbrook, for the appellant

A. Pond, for the respondent.

This is an appeal from an order 'of the Special Term denying the defendant’s motion for additonal security. Prior to the entry of the order appealed from, and of necessity therefore before the appeal was taken, the action in which such motion was made, came on for trial at the circuit and 'resulted in a judgment in favor of the plaintiff winch was duly entered on the 13th day of June, 1887. The appeal herein was taken subsequently and on the 28th day of June, 1887.

So long as that judgment stands unreversed, there is no action pending making such an order as the appellant desires either necessary or proper. The presumption of law being that the judgment ought to stand. (Flint v. Van Deusen, 24 Hun, 440 , 442.) The right to have additional security if any existed became merged in1 the judgment entered in the action. (Health Dept. v. O’Reilly, 18 Weekly Dig., 255.) The present appeal involves no substantial right, and the respondent’s motion to 'dismiss should be granted with ten dollars costs and printing disbursements.

Fish, J., concurred.

Appeal from order dismissed, with ten dollars costs and printing disbursements.