33 N.Y.S. 789 | N.Y. Sup. Ct. | 1895
Assuming that the court below had power to grant the order from which the appeal is taken, we think, under the circumstances of the case, such power should not have been exercised. The plaintiff was appointed receiver of the St. Lawrence Manufacturing Company, in proceedings to dissolve the' corporation on the application of the people, through the attorney general. He did not commence this action, but found it pending. It was commenced by the corporation long before his appointment. It did not appear that he was proceeding with the action in bad faith, or had been guilty of any mismanagement. He was about to bring the case to trial in the name of the original parties, as he lawfully might (Warehousing Co. v. Badger, 67 N. Y. 294), when, on motion of defendant, he was substituted as a party plaintiff, and afterwards the order from which the appeal is taken was made requiring him • to file security for costs. The sole ground on which the order was granted appears to have been that the corporation, at- the time of his appointment, was insolvent, and that, as receiver, he had no funds in his hands with which to pay the costs of the action. We think that fact did not justify an order requiring plaintiff to file security for costs in the absence of any evidence of bad faith or mismanagement ; especially in an action like this, commenced by the corporation, and merely continued by a receiver appointed on the application of the attorney general of the state. See Jenkins v. Stowe, 2 Law Bull. 57; Kimberly v. Goodrich, 22 How. Pr. 424; Darby v. Condit, 1 Duer, 599; Shepherd v. Burt, 3 Duer, 645; Ryan v. Potter, 4 Civ. Proc. R. 80; Wassinger v. Fennell, 13 Civ. Proc. R. 286; Bennett v. Coble, 43 Hun, 354; Rutherford v. Town of Madrid, 77 Hun, 545, 28 N. Y. Supp. 923. The above authorities hold that in an action brought by a trustee, receiver, administrator, or other party the plaintiff will not be compelled to file security for costs merely on the ground of insolvency, or that he has no funds in his hands; that it is necessary, in addition to the fact of insolvency, to show that the action was brought in bad faith or heedlessly, or that the plaintiff will not probably succeed. Certainly, such proof should be required in a case like this, where the action was commenced by the corporation long prior to the appointment of the receiver, and is merely continued by him.
We are also of the opinion that the motion of defendant should not have been granted on account of the delay in moving. The receiver was appointed in January, 1893, and the motion to compel him to file security for costs was not made until May, 1894, 16 months after his appointment, and after plaintiff had served a notice of trial on defendant. See Robinson v. Sinclair, 1 Denio, 628; Doyle v. Currey, 2 Law Bull. 48.
The order should be reversed, with costs and disbursements to the appellant, and the motion denied, with costs. All concur.
