Dunk v. Dunk

Parker, P. J.: The court has no authority to make an order for “ additional ” security for costs, save that given it by section 3276 of the Code. By the plain provisions of such section such an, order may be made ■after the allowance of an undertaking given pursuant to an order of the court, or after notice of the payment of money into court pursuant to am, order thereof. The fact that a prior order has been made determining' the liability of. the plaintiff to file security for ■costs, seems to be a condition precedent to the granting of “ additional security ” under this section. Concededly, no such order has been previously made. The first application to the court for security in this action is the one now before us, and the first order made ■on the subject is the one appealed from. I,t purports to have been made pursuant to section 3276, and assumes to give additional security. I am of the opinion that it was not warranted by such section, and that the principle upon which the decision in Republic of Honduras v. Soto (112 N. Y. 310, 312) is based is a clear authority for that conclusion. The order appealed from should be reversed, with costs. All concurred, except Smith, J., dissenting in opinion; Hough-TOh, J., not. sitting. .