Caccavo v. Rome, Watertown & Ogdensburg Railroad — 59 N.Y. Super. Ct. 129

Majority

p. 129

ANDREA CACCAVO, as Administrator, etc., Appellant v. ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Respondent.

Headnote

Security for costs, when required by statute and when the court, in its discretion, may direct the same.

Section 3271 of the Code of Civil Procedure provides, that in an action brought by or against an administrative capacity, the court may, in its discretion, require the plaintiff to give security for costs.

In this case, the court, on motion, did so require, and the only question presented on the appeal is whether any grounds existed for the exercise of such discretion. Held, that in the present case it seems in harmony with the Code to assume the responsibility of the plaintiff, if the administrator satisfy the court that he has a good cause of action, but the allegations of the complaint are upon information and belief, and the court is not informed of the sources of the information. This fact, accompanied by the specific statements in the affidavits submitted by the defendant in regard to the circumstances of the accident, supplied sufficient grounds for the exercise of the discretion of the court below. Upon the concession of pecuniary irresponsibility on the part of plaintiff, it certainly became his duty to satisfy the court that he had a good cause of action against the defendant, which he failed to do.

Before Sedgwick, Ch. J., Truax and Dugro, JJ.

Decided March 2, 1891.

Appeal from an order requiring plaintiff to file security for costs.

p. 130

Edward J. McGuire, for appellant.

Thomas Spratt, for respondent.

By section 3271, Code Civil Procedure, it is provided that in an action brought by or against an administrator in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs.

In the present case the court did so require, and upon this appeal the only question presented is, whether any grounds existed for the exercise of a discretion.

In order to determine this question it is well to inquire into the general principles upon which the Code provisions as to security for costs were based.

. It seems to have been deemed wise by the codifiers to assume the pecuniary responsibility of plaintiffs, except in certain specified cases where from the nature of the case irresponsibility was apparent, or deemed proper to be assumed. In the excepted cases the plaintiffs were required by the Code provisions to give security for costs, for instance, as of the class first referred to, an infant whose guardian ad litem had not given security, and in the second class, among others, non-residents and foreign corporations. Where irresponsibility was certain, security was generally required; the right of application for leave to sue in forma pauperis, however, being accorded.

In a case such as the present, it seems in harmony with the policy adopted by the codifiers to assume the responsibility of the plaintiff. If irresponsibility is, however, conceded, it would naturally follow, that this circumstance would suffice to make a prima facie case for the requirement of security. It may be sufficient to meet this case that an administrator satisfy the court that he has á good cause of action.

In the case presented sufficient appears to make it

p. 131

unnecessary to pass upon the question above referred to. It seems that the allegations of the complaint are upon information and belief, and that the court was not informed of the sources of the information. This fact, in view of the specific statements in the affidavits submitted on behalf of the defendant as to the circumstances of the accident, supplied sufficient ground for the exercise of discretion by the learned judge below.

Upon the concession of pecuniary irresponsibility, it certainly became the duty of the plaintiff upon the motion to satisfy the court that he had a good cause of action, and this it must be assumed he failed to do.

Order affirmed, with $10 costs.

Sedgwick, Ch. J., and Truax, J., concurred.