Peck v. Phoenix Insurance — 2 Silv. Sup. 342

Majority

p. 342

Frederick Peck, Appellant, v. The Phoenix Insurance Company, Respondent.

Supreme Court, First Department, General Term,

May 24, 1889.

Headnote

Costs. Security for.—Where the amount of security for costs previously filed by plaintiff will not be sufficient to indemnify defendant against costs, the appellate court will not interfere with the exercise of the special term’s discretion in requiring additional security to be given, even though the plaintiff has recovered a verdict for a large amount, where the trial court has ordered the defendant’s exceptions heard at the first instance at the general term.

Appeal from an order, requiring the plaintiff to give • additional security for costs, and staying his proceedings in the meantime.

J. A. Shoudy, for appellant.

George A. Black, for respondent.

Should the case finally go against the plaintiff, it is clear, from the appeal book, that the amount of security heretofore filed would not be sufficient to indemnify the defendant against costs. It is true that the plaintiff has, at the end of the fourth trial, obtained a verdict for upwards of 110,000. No judgment, however, has been entered thereon, but the learned trial judge directed the exceptions to be heard at the general term, in the first instance. There is, therefore, no determination by the court that the plaintiff is right in his contention. It is true that the verdict carries with it every intendment in favor of the plaintiff’s ultimate success, so far as the facts are involved, but there was doubtless in the mind of the learned judge a doubt as to some important questions of law involved, and hence it appeared that the case was not so clearly in favor of the plaintiff as to warrant a judgment in his favor until the general term had so adjudicated.

p. 343

Under these circumstances, we are not disposed to interfere with the exercise of the discretion of the special term, in requiring additional security to be given.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, Ch. J., and Bartlett, J., concur.