Denehy v. McCloud

Decided October 15, 1897

City of New York Municipal Court · decided 1897-10-15

<p>Security for costs — Action revived in favor of plaintiff’s administrator — Code Civil Procedure, § 3271.</p> <p>The provisions of Code of Civil Procedure, section 3271, "that, in an action brought by or against an executor or administrator, in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs, have no application to an action commenced by a person since deceased, thereafter revived by order, and continued in favor of her administrator.</p>

Decided 1897-10-15

Per Curiam.

¶1This action was commenced by the plaintiff’s intestate and upon her death it was by order revived and continued by the plaintiff as administrator.

¶2An order was made after the trial of the action requiring the *542plaintiff to file security for costs tip to and including the trial and ' for costs of the appeal.

¶3In our opinion the order made was wrong.

¶4Section 3271 of the Code, 'under which authority is given to require such security, does not apply to an action commenced by a decedent and revived in favor . of her personal representatives. Sullivan v. Remington Co., 27 Hun, 270.

¶5The order is reversed, with costs.

¶6Present: Fitzsimons, Conlan and Schuchman, JJ.

¶7Order reversed, with costs.