Opinion
May 5, 1911.
Samuel H. Guggenheimer, for the appellant.
One Hilgenberg, a resident of New Jersey, died on the 4th of February, 1910. Letters of administration were, on the seventh of September following, issued upon his estate to this plaintiff, who, on the twenty-first of the same month, obtained ancillary letters of administration in the State of New York. The intestate, at the time of his death, held an accident policy to the amount of $5,000, issued by the defendant, and upon which a recovery is here sought. When application was made for ancillary letters a statement was made to the effect that the intestate had no property in the State of New York other than the cause of action upon the policy referred to, and for that reason letters were issued without requiring any security. On the 1st of August, 1910, the plaintiff commenced this action by the service of a summons, and some time thereafter served the complaint. After the complaint had been served the defendant moved, under section 3271 of the Code of Civil Procedure, that the plaintiff be required to give security for costs. The motion was denied and defendant appeals. This section of the Code provides, among other things, that in an action brought by or against an administrator in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs.
I am of the opinion that the court, in the exercise of its discretion, should have granted the motion. ( Hagar v. Radam Microbe Killer Co., 119 App. Div. 839; McKeaggan v. Post McCord, 117 id. 129; Meaney v. Post McCord, Id. 563; Graham v. Aschenbach, 136 id. 447.) The plaintiff, as ancillary administrator, has no property in this State, except the claim in suit, and if costs are awarded against him nothing in this State with which to pay them. Under such circumstances a plaintiff ought to give security for costs unless special reasons are shown to exist why the requirement might lead to a denial of justice. Without the security the defendant, while obliged to pay costs if defeated, would be unable to collect costs if successful. No facts are set forth justifying the denial of the motion.
The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., SCOTT, MILLER and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.