Opinion
September, 13, 1938.
Huntington Hill, for the plaintiff.
Hugh A. O'Haire, for the defendant Faulk Co., Inc.
After trial of this action for an accounting in a partnership, an interlocutory judgment was entered in favor of the plaintiff, and referring the matter of the account to an official referee. Now, upon the eve of the hearings of such accounting, the defendant makes this application.
I am of opinion that the plaintiff, having prevailed upon the trial, it is now too late for the defendant to apply for this relief, even though a notice of appeal from the interlocutory judgment has been filed. The court is mindful of the language of section 1524 of the Civil Practice Act and of such decisions as Snyder v. Griswold ( 140 Misc. 82) and Hungarian General Credit-Bank v. Titus ( 175 A.D. 507), but the rule that an application requiring plaintiff to give security for costs may be made at any stage of an action could not have been intended to apply to a situation where the party required to furnish security for costs has, as here, prevailed after trial. Motion denied.