Majority
p. 540William A. Harding, as Administrator, etc., of Medad W. Stone, Deceased, Appellant, v. Walter H. Field, Respondent.
Headnote
Undertaking upon appeal by an administrator — security far past, costs.Upon an appeal Ity an administrator from a judgment rendered against him, security for past costs should not he required, and an undertaking in the sum of $250 should he exacted to secure the costs upon the appeal.
Arpea l by the plaintiff, William A. Harding, as administrator, etc., of Medad W. Stone, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of December, 1894, directing that the plaintiff file and serve an undertaking in the sum of $1,500 to secure costs.
The order appealed from provided “ that the plaintiff herein file •and serve within ten days from notice of entry of this order an undertaking according to law and the practice of this court, with two
p. 541
sufficient sureties, in the usual form, that tbe plaintiff will pay tlie costs awarded against bim by the judgment herein, and ail other costs and damages which may be awarded against tbe plaintiff as appellant on bis appeal from tlie judgment herein, not exceeding fifteen hundred dollars ($1,500).”
T. T). K<mnmm, for the appellant.
Jlow«/‘d 11. Bayne, for tlie respondent.
We are of opinion that the order in this case should have required an undertaking from the plaintiff ill the sum of $250 to meet the costs accruing upon the appeal taken by the plaintiff and that security for past costs should not have been required.
The order should be modified accordingly, and affirmed as modified, without costs to either party.
Present— Yan Brunt, P. J., Pollett and Parker, JJ.
Order modified, and as modified affirmed, without costs.