Opinion
November Term, 1903.
J. John Hassett, for the appellant.
D. O'Connell, for the respondents.
The case of Pursley v. Rodgers ( 44 App. Div. 139) is relied upon by defendant's counsel as being decisive of this case. The head note to that case reads, in part, as follows: "Where a non-resident, appointed an administrator in the State of New York, brings an action in the Supreme Court in his representative capacity for the benefit of the next of kin of his decedent, who are also non-residents, it is error for the court to deny a motion addressed to its discretion, to require the plaintiff to give security for costs, where it appears that the intestate left no property and that the letters of administration have been issued simply to enable the administrator to bring the action for the recovery of damages for the death of his intestate, caused by the alleged negligence of the defendant." In opposition to the motion made in that case, an affidavit of one of the attorneys for the plaintiff was read stating but the single fact that the action was brought in good faith.
Under section 3271 of the Code of Civil Procedure it is discretionary with the court to require the plaintiff to give security for costs. Unless, therefore, this court shall decide that there has been an improper exercise of that discretion, amounting to abuse, it should not interfere with the decision of the Special Term. Upon the precise set of facts existing in the case cited, the Appellate Division in the first department decided that the discretion had been improperly exercised. The facts here are different. The complaint itself alleges that the intestate died leaving property in this State, but that the evidence of title merely to that property had come into the defendant's possession. The action was brought to protect that estate, and not merely to recover damages, as in the Pursley case, for the next of kin — not for the estate. Where, as in the case at bar, property is taken from another, who is at the point of death, by one whose right to hold the same is at least suspicious, the court will not, in its discretion, place any obstacle in the way of its recovery by the lawful representatives of the decedent's estate. The discretion was properly exercised and the order should be affirmed.
All concurred; HOUGHTON, J., not sitting.
Order affirmed, with ten dollars costs and disbursements.