Opinion
December, 17, 1904.
P.H. Fitzgerald, for motion.
Charles S. Kent, opposed.
The motion must be denied. The plaintiff, as receiver, will not be compelled to file security for costs merely on the ground of insolvency, or that he has no funds in his hands. It is necessary, in addition to the fact of insolvency to show that the action was brought in bad faith or heedlessly or that the plaintiff will probably not succeed. Hale v. Mason, 86 Hun, 499; Ridgway v. Symons, 14 Misc. 78. Supreme Court Rule 77.
The plaintiff not having obtained leave of the court to bring this action, he may enter an order nunc pro tunc granting him leave to bring it. Hirshfeld v. Kalischer, 81 Hun, 606. No costs allowed.
Motion denied, no costs.