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George E. Joseph, Trustee of Estate, v. Norman C. Raff.

an error has been made in respect to the form of the judgment by which its scope or amount has been enlarged or increased beyond that plainly authorized by a verdict, referee's report or decision of a court, a question is not presented for the consideration of the court on appeal, but the error must be corrected, if at all, by motion in the court of original jurisdiction." It follows, accordingly, that the order appealed from should in this respect be reversed.

In regard to the three other alleged irregularities, we need add nothing to what was said by the learned judge in disposing of the motion at Special Term.

The order appealed from should accordingly be reversed and the motion granted to the extent indicated, and in all other respects affirmed, without costs to either party on this appeal.

MCLAUGHLIN and LAUGHLIN, JJ., concur; Van Brunt, P.J., dissents.

GEORGE E. JOSEPH, AS TRUSTEE OF ESTATE OF MUTUAL MERCANTILE AGENCY, RESPONDENT, v. NORMAN C. RAFF, APPELLANT.

SUPREME COURT-APPELLATE DIVISION-FIRST DEPARTMENT-NOVEMBER, 1902.

§§ 3268, 3271.

Security for Costs Action by Trustee in Bankruptcy.

An action by a trustee in bankruptcy falls within the provisions of section 3268 of the Code, and the defendant is entitled to security for costs as a matter of right unless the cause of action arose after the adjudication in bankruptcy.

George E. Joseph, Trustee of Estate, v. Norman C. Raff.

The opinion in Joseph v. Makley (73 App. Div. 156) qualified. (Decided November, 1902.)

Appeal from order denying motion of defendant for security for costs.

William B. Ellison and Walter L. McCorkle, for appellant. William L. Cahn, for respondent.

O'BRIEN, J.-The plaintiff brings this action as trustee in bankruptcy to set aside transfers made to the directors of the bankrupt corporation, on the ground that they were without consideration and were made at a time when the corporation was insolvent. The defendant made a motion for security for costs, which was denied, and from the order so entered he has appealed.

The question thus presented is whether, under the construction to be given to section 3268 of the Code of Civil Procedure, the defendant is entitled as matter of right to an order requiring the plaintiff to give security for costs. It appears that the alleged cause of action arose prior to the assignment or adjudication in bankruptcy or the appointment of the plaintiff as trustee, and the Special Term, relying no doubt upon what was said by this court in the case of Joseph v. Makley (73 App. Div. 157), and assuming, therefore, that the granting of security for costs was discretionary, denied the application.

In the Makley case (supra) the Special Term had denied the application upon the ground of want of power, and the question presented was as to whether that order was right; and we held that the court had power, and sent the motion back to the Special Term so that the judge there might have the opportunity to examine into the facts and determine the application on the merits. In discussing the construction to be given to section 3268 of the Code of Civil Procedure, however, we fell into error in stating that the granting of security for costs is discretionary, it being apparent from a re-examination of that section that it is mandatory, and that with respect

George E. Joseph, Trustee of Estate, v. Norman C. Raff.

to causes of action arising prior to the adjudication in bankruptcy, the defendant, assuming he is not guilty of laches, is entitled as matter of right to security for costs.

The discussion in the Makley case (supra) was unnecessary to our decision, which in itself was right. But the discussion whether necessary or not was wrong so far as it was therein stated that applications under section 3268 of the Code were addressed to the discretion of the court. Where the application is made under section 3271, there it is discretionary, while, as we have said, in cases falling under section 3268 it is mandatory on the court where the application is properly and seasonably presented.

The distinction between sections 3268 and 3271 of the Code of Civil Procedure has been clearly stated in Welch v. Gaffney (1 How. Pr., N. S. 146) as follows: Where an official assignee of a debtor sues upon a cause of action arising before the assignment,' he may be required by the defendant as of right to give security for costs (Code, sec. 3268). Where the cause of action comes to the assignee 'subsequent to the assignment,' it is discretionary with the court whether it will require the plaintiff to give security or not (Code, sec. 3271). This is the feature which distinguishes these two sections. If, for example, the defendant had bought the goods from the assignee 'subsequent' to the assignment, or if he had taken property from the assignee's possession, the case would have been brought under the provisions of section 3271 (supra). In the present instance the cause arose prior to the assignment, and the assignee must give security for costs." This distinction also was recognized by this court in the case of Reilly v. Rosenberg (57 App. Div. 408) and Kelley v. Kremer (74 App. Div. 456).

The present application, therefore, falling, as it does, within section 3268 of the Code of Civil Procedure, should have been granted, as the defendant was entitled as matter of right to have the plaintiff file security for costs. It follows that the

George E. Joseph, Trustee of Estate, v. Norman C. Raff.

order appealed from must be reversed, with $10 costs and disbursements, and the motion granted.

All concur.

NOTE. SECURITY FOR COSTS IN CERTAIN CASES DISCRETIONARY.

Section 3271 of the Code of Civil Procedure enumerates a class of plaintiffs whom "the court may in its discretion" require to give security for costs. Ryan, as adm., v. Potter, 4 Civil Pro. 80, see note; Dunne v. Am. Surety Co., 29 Civil Pro. 59; Wassinger, as adm., v. Fennell, 13 Civil Pro. 286; Ridgway, as recv., v. Symons, 25 Civil Pro. 23; see also note page 24; Lyons, as admx., v. Cahill, 12 Civil Pro. 72; Healy v. Twenty-third St. R. Co., 1 Civil Pro. 15, see note. It may be required in such cases on appeal. Knoch v. Funke, 22 Civil Pro. 161; Wood v. Blodgett, 15 Civil Pro. 114; Gifford, as recv., v. Rising, 14 Civil Pro. 172.

Where the suit is brought by plaintiff in a dual capacity, he cannot be required to give it. McDougal v. Gray, 15 Civil Pro. 237.

But a person suing in the name of overseers of the poor cannot be required to give security for costs. In re Martin, 7 Civil Pro. 399.

Where an action is brought in the lifetime of a plaintiff, upon it being revived his administrator will not be required to give security for costs. Sullivan v. Remington, 2 Civil Pro. 68.

Where a plaintiff is trustee of an express trust when one of the beneficiaries is a non-resident of the State and the other is an infant whose guardian ad litem has not filed such security, he will be required to file security for costs. Fish v. Wing, 1 Civil Pro. 231; see also note.

How GRANTED.

Such an order may be granted ex parte. Dunne v. Am. Surety Co., 29 Civil Pro. 59; per contra, see Swift v. Wheeler, 13 Civil Pro. 343; and the court is not justified in exercising such discretion upon an ex parte application made after service of answer. Kelley v. Kremer, 74 App. Div. 456.

In the Matter of the Application of Sarah Asch, etc.

IN THE MATTER OF THE APPLICATION OF SARAH ASCH, ETC.

SUPREME COURT-APPELLATE DIVISION-FIRST DEPARTMENT-NOVEMBER, 1902.

§ 2348.

Application to be Relieved from Purchase at Judicial Sale Denied― Sale in One Proceeding Under Sections 85 and 87, Real Property Law, and Section 2348 Code Civil Procedure.

The will of A left a parcel of real estate in the City of New York to his wife, for life, and upon her death to trustees to hold the premises upon several distinct trusts, for the benefit of those children of the testator who survived their mother, and further provided that on the termination of the minority of any child, or upon the death of any child during minority, the trust for that child should absolutely cease and determine; that each of the children of the testator living at the death of the mother should take a vested estate in remainder, expectant upon the termination of the trust at majority, and that in the event of the death of any child before attaining majority the share or portion held for the benefit of such child should be freed from the trust, and should pass absolutely to his or her heirs or devisees. In October, 1896, a joint application was made by the trustees under the will and by the guardian of the infant remaindermen, for the sale of the said premises, including the estate of the trustees and of the infants therein. An order was thereafter made directing a sale, and a deed was tendered to the purchaser which was signed not only by the special guardian and the trustees, but also by the widow as the owner of the life estate, and by a child of the testator who had attained his majority during the pendency of the proceeding. Upon an application made by the purchaser to be relieved from his purchase, Held:

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