Majority
p. 423JOHN MORPIE, by Guardian ad litem, Respondent v. MANHATTAN BRASS COMPANY, Appellant. Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ. Decided March 14, 1892.
Headnote
Security for costs.It did not appear in this case that the guardian ad litem, had filed security for costs, or that the plaintiff had obtained leave to sue as a poor person, therefore the defendant’s motion should have been granted.
This action was commenced on October 2, 1891.
On October 16, 1891, defendant appeared, demanded complaint, and on the same day obtained order requiring plaintiff to give security for costs by paying into court two hundred and fifty dollars, or by filing an undertaking, or show cause October 23,1891, why he should not give security with an ad interim stay of proceedings.
The plaintiff then gave notice of motion for leave to sue as a poor person.
These applications were heard together on November 30, and on December 3 the justice hearing the motions denied the plaintiff’s motion for leave to sue as a poor person, and also denied the defendant’s motion for security for costs.
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The plaintiff did not appeal, but the defendant brings this appeal from the order denying its motion.
Brownell & Lathrop, attorneys, and William G. Lathrop, Jr., of counsel, for appellant, argued:
There having been no laches or delay, and the plaintiff’s application for leave to sue as a poor person having been denied, the defendant was entitled as a matter of right to security for costs. Code Civ. Pro., §§ 459, 469 and 3268 (all as amended by chap. 170, Laws of 1891); §§ 3271 and 3272. Whatever doubt existed before the amendments of chapter 170, Laws of 1891, is removed by those amendments. They give a defendant an absolute right to security. Before these amendments the following cases held this to be law. Meredith v. 42d St. and Grand St. R. R. Co., 1 Civ. Proc. R., 15n.; Healey v. 23d St. R. R. Co., 1 Ib., 15; Blake v. Dolan, 2 Law Bulletin, 14; Buckley v. Gutta Percha Manfg. Co., 3 Civ. Proc. R., 428; Churchman v. Merritt, 50 Hun, 270 ; Robertson v. Barnum, 29 Ib., 657; McDonald v. Peet, 7 Civ. Proc. R., 200; Weber v. Moog, 12 Abb. N. C., 108 . The case of Steinberger v. Manhattan El. R. R. Co., 46 Superior Ct. Reports, 216, which seems in conflict with the above authorities, was decided by this court before subdivision 5 of § 3268 and § 3272 of chapter 12 of the Code of Civil Procedure took effect.
Adam Finch, for respondent.
The defendant’s right to security for costs depended upon section 3268 Code Civ. Pro., as amended by chapter 170, Laws of 1891. It says that a defendant may require security for costs to be given where the plaintiff is, when the action was commenced, subd. 5, an infant whose guardian ad litem, had not given such security excepting as otherwise provided in
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§§ 459 and 469 of the act. These sections refer to the right of an infant to obtain leave to prosecute as a poor person.
As in this case it did not appear that the guardian ad litem had filed security for costs, or that the plaintiff had obtained leave to sue as a poor person, the defendant’s motion should have been granted. The order appealed from is reversed and defendant’s motion below granted, with $10 costs.