Graham v. Aschenbach

120 N.Y.S. 882 | N.Y. App. Div. | 1910

Scott, J.:

The defendant corporation appeals from an order denying its motion that plaintiff be required to give security for costs. Assuming that the motion was addressed to the discretion of the court (Code Civ. Proc. § 3271) we are of opinion that that discretion should have been exercised in favor of granting the motion. The plaintiff is an assignee for the benefit of the creditors of the individual defendants Aschenbach and Smith, and as such assignee has apparently no assets except the claim in suit here and, consequently, nothing wherewith to pay costs if they should be awarded against liim. The object of the action is to set aside a transfer by the individual defendants of all their business assets to the defendant .corporation. In such a case we consider that an assignee should generally be required to give security for costs unless special reasons are shown to exist why such a requirement might lead to a denial of justice. To require such security to-be given tends to put the parties on.an equality, for without security the defendants, while obliged to ¡pay costs if defeated, will be unable to collect costs if successful. ¡No especial reasons for denying the motion are shown in the present case. On the contrary, the circumstances attending the eomineince.ment of the action suggest that the motion was well made. -■

- The order shoiild be. reversed, with ten dollars costs- and disbursements, and the motion granted, with ten dollars costs. ¡

Ingraham, .P. J., Laughlin, Clarke and'Hiller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, ¡ and motion granted, with, ten dollars costs. " í