McKeaggan v. Post & McCord

McLaughlin, J.: This action is brought to recover daihages alleged to have been sustained by the widow and next of kin by reason of the death of plaintiff’s intestate. Before answering the defendant made a motion to compel the plaintiff to file security for costs. The motion was denied and defendant has appealed. The facts set out in the moving papers were' uncontradicted and were to the effect that the plaintiff and all of the next of kin for some time prior to and at the time of the commencement of the action were residents of Chelsea, Mass.; and there was no property within the State of Hew York. These facts being uncontradicted,, the motion for security should have been granted (Pursley v. Rodgers, 44 App. Div. 139), even though it be conceded that whether or not security should be required rested in the discretion of the court under section 3271 of the Code of Civil Procedure. Where the [130] plaintiff and all of the parties whom, the plaintiff represents are non-residents, and where there is apparently ho property of any kind within this State from which costs, in case plaintiff should fail in the action, could be collected, then the defendant is entitled to the favorable exercise of the court’s discretion in requiring security for costs. Indeed, it is not at all clear that the plaintiff was not entitled, as a matter of right, under section 3268 of the Code to security, for costs. This section is a general provision and seems to relate to all cases where the plaintiffs are non-residents. However, it is unnecessary at this time to determine this question, because even under section 3271, upon the facts here presented, the defendant was entitled to the favorable exercise of {he court’s discretion. ■ The order appealed from, therefore,' must be reversed, with ten dollars costs and disbursements, and the motion' to compel the plaintiff to give security for costs granted, ,with ten dollars costs. Patterson, P. J.,' Ingraham, Laughlín and Houghton, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.