Pursley v. Rodgers

Barrett, J.: ' If the question here were solely whether an administratrix appointed in this State, who happened individually to be á nonresident, was absolutely required to- give security - for costs under section 3268 of the Code of Civil Procedure, I should have no hesitation— following the almost unbroken" line of Special Term authority (Hall v. Waterbury, 5 Abb. N. C. 356; McDougal v. Gray, 15 Civ. Proc. Rep. 237; Flynn v. Tinney, N. Y. L. J. Aug. 8, 1899; Crowell v. Bills, 24 Misc. Rep. 411) — in holding that she was - not. ..The reason is obvious. Section 3268 (Subd. 1) plainly relates to persons suing as individuals. When the same section also brings within its area persons suing in certain representative capacities, it carefully enumerates and limits each particular official status thus embraced (Subd. 4). It consequently recognizes and gives effect to the construction that in; the one instance the action is personal, in the other representative. In the latter case the substantial plaintiff is the estate, not the individual. As there must formally be some concrete personality to represent the estate, an individual is appointed by law, and that individual brings the action as administrator. The administrator thus appointed by our courts is not, as such, “ a person residing without the State,” within [141] the meaning of the section cited. He is but. the legal representative of the deceased person. His action relates solely to the estate of that deceased person. That action is necessarily brought in the form prescribed by law, and thereby the estate, as an intangible entity, comes into court as the real and beneficial plain tiff. This distinction between the individual and the representative plaintiff is emphasized by the special provisions of sections 3271 and 3246 of the Code. Under section 3271, the court is authorized in its discretion to require the representative plaintiff to give security for costs. Under section 3246, the costs awarded against a representative, upon a final judgment, are collectible exclusively from the estate represented, unless the court directs them to be paid by him personally for mismanagement or bad faith in the prosecution of the action. It was at one time held that section 3271 was controlled or limited by section 3246, and that consequently the court had no power to require security for costs from the representative unless, upon the application therefor, mismanagement or had faith were made to appear. The Court of Appeals in Tolman v. The Syracuse, Binghamton c& New York Railroad Company (92 N. Y. 353) overruled the decisions where this view prevailed, and held that the two sections should he construed separately and independently; and that the court had power under section 3271 to require security for costs from one bringing suit in his representative capacity, without evb dence of mismanagement or had faith, and aside from the ultimate question of his personal liability for costs under section 3246. It is clear, therefore, that'the court below was authorized to exercise its ordinary discretion upon the subject. The real questions presented upon this appeal, therefore, are, first, whether the discretion of the court was invoked by the procedure below; and, second^ if it was, whether that discretion, upon the conceded facts, was properly exercised. The respondent contends that the discretion of the court was not invoked under section 3271, and that the application below was denied for the reason that the defendant claimed security as an absolute right under subdivision 1 of section 3268 ; that is, solely because the administratrix was a non-resident. ' The papers do not warrant the latter contention. The non-residence of the plaintiff was, but one of the facts upon which the application was founded. '.Then:, [142] too, the procedure indicates the contrary. Where a defendant claims security as a matter of right under section 3268, the mode of securing that right is prescribed in section 3272. The latter section plainly contemplates an ex parte application. .This is its language: Where security for costs is required to be given, the court, * * * upon due proof by affidavit of the facts, must make an order requiring the plaintiff within a time specified either to pay into court the sum of two hundred and fifty dollars, * * * or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant’s •attorney ; and staying all other proceedings on the part of the plaintiff, except to review or vacate the order, until the payment or filing.” We are aware that this provision has been sometimes disregarded in this district, and'that, instead of applying ex parte and awaiting the plaintiff’s motion to vacate, defendants have moved on notice for security. The fact, however, that parties have occasionally deviated from the' procedure formulated by the section is not a circumstance to be seriously considered upon the question as to the inherent character of the application.. When the defendant seeks security as matter of right, he is authorized to proceed ex parte and to apply therefor to the court or to a judge of the court. When he invokes discretion under section 3271, he must apply to the court and necessarily upon notice. Here the defendant did not apply ex parte either to the court or to a judge of the court. He moved the court upon notice, and not only upon an affidavit showing the'plaintiff’s non-residence, but upon additional facts not at all essential upon an application for security as matter of right, but quite important upon an appeal to discretion. These were contained in the complaint, upon which, in addition to the affidavit of his attorney, the application was based. This complaint showed that the action was brought on behalf of the next of kin of the plaintiff’s intestate, and that all of these next of kin, as well as the plaintiff, were residents of the State of Virginia. In opposition to the motion an affi-‘ davit of one of the plaintiff’s attorneys was read stating but the single fact that the action was' brought in good faith. Ho proof was offered that the plaintiff’s intestate left property either' here or in Virginia. It is, therefore, a fair presumption that letters of administration were issued to the plaintiff solely to enable her to [143] bring this action and to secure therein damages for herself and the next of kin of the decedent. We thus have a case where the plaintiff and all the parties whom she represents are non-residents of this State, and where there is apparently no estate or property of any kind within our jurisdiction (or, indeed, elsewhere) from which costs, in case the plaintiff should fail in the action, can be collected. We think that these facts •entitled the defendant to the favorable exercise of the court’s discretion, that the application was addressed to that discretion, and that the defendant’s motion for security should have been granted. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with 'ten dollars costs, the latter to abide the event. Rumsey and McLaughlin, JJ., concurred.