Podmore v. Seamen's Bank for Savings , 59 N.Y.S. 629 ( 1899 )

Freedman, P. J.

It has been decided by the Court of Appeals, in Tolman v. Syracuse, etc., R. R. Co., 92 N. Y. 353, that the provisions of the Code requiring security for costs are to be construed independently of the provisions relative to costs against executors and administrators upon final judgment, and that the scope of sections 3268 et seq. is not to be limited by section 3246. It therefore follows that since section 3246 cannot control or affect the operation of section 3271, which relates to security for costs in actions where executors and administrators are specifically mentioned, it cannot control or affect the operation of section 3268, in which they are not mentioned. Under section 3268, it has been repeatedly held that defendant, who moves promptly, has an absolute right to security for costs from a non-resident plaintiff. Healy v. Twenty-third St. R. Co., 1 Civ. Pro. 15; Wood v. Blodgett, 49 Hun, 64; Churchman v. Merritt, 50 id. 270; Hand v. Shaw, 13 Misc. Rep. 143. It is conceded that the plaintiff does not reside within the jurisdiction of the City Court. He therefore comes literally within section 3268. The mere fact that he is an administrator by appointment by the surrogate of the county of New York makes no difference. Murphy v. Darlington, 1 Code Repr. 85. In Tracy v. Dolan, 31 App. Div. 24, the non-residence of the executors was considered as an incident to be considered in the case, and they were ordered to give the additional security. The Special Term cases of Hall v. Waterbury, 5 Abb. N. C. 356, and McDougal v. Gray, 15 Civ. Pro. 237, should not be followed. I am clearly of the opinion that the case falls squarely ■within section 3268. Moreover, if the City Court had any discretion in the matter, the order was properly made under section 3271. It was made upon motion founded upon regular notice and after a hearing on each side. In that aspect of the case the exercise of that discretion will not be disturbed.

Order affirmed, with costs.

All concur.

Order affirmed, with costs.