Wilbur v. White

Hardin, J. If a case was made of bad faith or mismanagement, in the prosecution of the action, the court, in its [322] discretion, might impose costs personally. Such imposition might he made after trial of the action. The court, in its discretion, may require security for costs ( Old Code, sec., 317; Gedney agt. Purdy, 47 N. Y., 676; Norris agt. Breed, 12 Abb. [N. S]., 185). But when the action is brought and prosecuted in good faith such security will not he required (Olcott agt. Maclean, 18 Sup. Ct. R. [11 Hun], 394). Rapallo, J., says, in Read agt. Waterhouse (52 N. Y., 589): “ The fact that the trust fund is under the jurisdiction of another tribunal, does not seem to me sufficient to overcome the express provisions of section 317.” This motion has been put upon the ground that the plaintiff has no funds in his hands and the defendant does not cite a case where the mere absence of funds led the court to exercise its discretion under section 317 of the Code (Darby agt. Condit, 1 Duer, 599). The case of Webb (18 Sup. C. R. [11 Hun], 124), is not in point. The right of a foreign administrator or executor to sue in our courts was the point there involved. Cummings agt. Edgerton (9 Bos., 685) was one where the action was to vex, and declared an unnecessary action by Bobebtsou . J. Ketchonn a/nd Blake agt. dark was a case where an assignee brought an appeal in name of his assignor and he was held to give security for costs (4 John., 484 ). If the defendant shall be able, in the future progress of the action, to show mismanagement' or -bad faith he may make a motion predicated thereon. This motion is denied with ten dollars costs.