61 N.Y.S. 1015 | N.Y. App. Div. | 1899
Lead Opinion
' If the question here were solely whether an administratrix appointed in this State, who happened individually to be á nonresident, was absolutely required to- give security - for costs under section 3268 of the Code of Civil Procedure, I should have no hesitation— following the almost unbroken" line of Special Term authority (Hall v. Waterbury, 5 Abb. N. C. 356; McDougal v. Gray, 15 Civ. Proc. Rep. 237; Flynn v. Tinney, N. Y. L. J. Aug. 8, 1899; Crowell v. Bills, 24 Misc. Rep. 411) — in holding that she was - not. ..The reason is obvious. Section 3268 (Subd. 1) plainly relates to persons suing as individuals. When the same section also brings within its area persons suing in certain representative capacities, it carefully enumerates and limits each particular official status thus embraced (Subd. 4). It consequently recognizes and gives effect to the construction that in; the one instance the action is personal, in the other representative. In the latter case the substantial plaintiff is the estate, not the individual. As there must formally be some concrete personality to represent the estate, an individual is appointed by law, and that individual brings the action as administrator. The administrator thus appointed by our courts is not, as such, “ a person residing without the State,” within
It is clear, therefore, that'the court below was authorized to exercise its ordinary discretion upon the subject. The real questions presented upon this appeal, therefore, are, first, whether the discretion of the court was invoked by the procedure below; and, second^ if it was, whether that discretion, upon the conceded facts, was properly exercised.
The respondent contends that the discretion of the court was not invoked under section 3271, and that the application below was denied for the reason that the defendant claimed security as an absolute right under subdivision 1 of section 3268 ; that is, solely because the administratrix was a non-resident. ' The papers do not warrant the latter contention. The non-residence of the plaintiff was, but one of the facts upon which the application was founded. '.Then:,
We thus have a case where the plaintiff and all the parties whom she represents are non-residents of this State, and where there is apparently no estate or property of any kind within our jurisdiction (or, indeed, elsewhere) from which costs, in case the plaintiff should fail in the action, can be collected. We think that these facts •entitled the defendant to the favorable exercise of the court’s discretion, that the application was addressed to that discretion, and that the defendant’s motion for security should have been granted.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with 'ten dollars costs, the latter to abide the event.
Rumsey and McLaughlin, JJ., concurred.
Concurrence Opinion
(concurring):
The action was brought to recover for the damages caused by the death of the plaintiff’s testator by reason of the .negligence of the defendant. Upon the complaint and an affidavit that plaintiff, the administratrix, is a non-resident, of the State of New York and resides in the State of Virginia, the defendant made a motion to •compel the plaintiff to give security for costs. It appears by the •complaint that the next of kin of the deceased for whose benefit the action was brought also reside in the State of Virginia. That motion was denied and from the order entered thereon the defendants appeal.
By section 3268 of the Code of Civil Procedure it is provided that the defendant in an action brought in a court of record may require security for costs to be given as prescribed in this title, where the plaintiff was, when the action was commenced, a person residing without the State. This is a géneral provision applying to all actions in which a non-resident is a plaintifij. In relation, however, to actions brought by executors or administrators, section 3271 of the Code provides 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; and the question presented is as to which of these sections is to control. If section 3268 controls, then the defendant had the right to
This action is brought under the statute which authorizes an action by the personal representative of a deceased person for the, benefit of the next of kin. The nominal plaintiff is the personal representative of the deceased ; the. real plaintiffs for. whose benefit the action is brought are the next of kin, both the nominal plaintiffs and the real parties interested being non-residents. ■ This is not the case where the personal representative of a resident of this State brings an action to enforce a demand which was an asset of the estate of such resident and to be administered under the laws of the State. It might be in such a case that as the estate of which thé:plaintiff was the representative was here, and to be administered here, the residence of the representative 'was not material. But where the action is brought by one individual for the benefit of other individuals and both the one bringing the action and- tliq ones for whose benefit it is brought are non-residents, no one interested in tlie recovery in any manner being a resident, I cannot see'.upon what principle it can be said that the plaintiffs are not non-résidents. Sullivan v. Remington. Mfg. Co. (2 Civ. Proc. Rep. 68) does not apply. That action was brought by a plaintiff, who was a.resident, and after issue joined
In Tracy v. Dolan (31 App. Div. 24) where the action had been continued by an administrator, he was required to give an additional undertaking, because the surety on a former undertaking given by the testator in his lifetime had died, and the estate of the surety was insufficient to secure the payment of the amount specified in the undertaking. If an executor or administrator is not bound to give security for costs it is difficult to see upon what principle the plaintiff was there required to give such security. If the grant of letters of administration has the effect of making the administrator a resident of -the State, we had no right to require him to give security for costs because the former plaintiff had been a non-resident and had been required to give such security.
I think, therefore, that the order appealed from should be reversed and the motion granted.
Van Brunt, P. J., concurred; McLaughlin, J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event. "