¶1 (dissenting). The provisions of the Code of •Civil Procedure relating to security for costs should be liberally construed. r
¶2 The defendant’s attorney, on the ground of plaintiff’s non-residence, served notice of motion asking security for costs, and later another notice of motion demanding increased .security. On both occasions plaintiff gave the security so *270 demanded without defending the motions. A third motion, after appeal taken to the Appellate Division was made for further security for costs and an order duly granted by the Special Term directing the undertaking to be tiled. This order was reversed by the Appellate Division, and we are asked to review the latter decision.
¶3 The sole ground for reversal is that in the first two motions for security orders were not entered, the plaintiff furnishing undertakings without that formality.
¶4 In each case motion papers had been duly served and the proceeding was pending when undertakings were given, and it seems to me a narrow and unreasonable construction to hold that this failure to enter orders when plaintiff voluntarily gave the proper undertakings in pending motion proceedings, deprives the defendant of the statutory provisions under which he was pursuing his remedy in a proper manner. The plaintiff swears, on information and belief, that neither undertaking was filed. The second undertaking furnished by plaintiff states that the first one was duly executed and filed.
¶5 The case of Republic of Honduras v. Soto (112 N. Y. 310) has no application to section 3276 of the Code of Civil Procedure, as amended in 1891 (Chap. 161). The case cited was decided in January, 1889, and was dealing with that section when it did not contain any provision as to the payment of money into court as did section 3272 at that time in reference to giving original security.
¶6 In 1891 section 3276 was amended in four different places so as to couple with the provisions relating to an undertaking additional enactments covering the case where there should be payments of money into court. This section deals exclusively with proceedings for an order to give additional security.
¶7 The order appealed from should be reversed, with costs.
¶8 Parker, Ch. J., Martin, Cullen and Werner, JJ., concur with O’Brien, J.; Vann, J., concurs with Bartlett, J.
¶9 Order affirmed.