| NY | Jul 1, 1883
This is an appeal from an order of the General Term, affirming an order of the Special Term, denying a motion to compel the plaintiff to file security for costs. It appears from the opinion of the judge at Special Term that the motion was denied upon the sole ground that a case did not arise under section 3271 of the Code of Civil Procedure for the court to exercise its discretion in requiring security for costs, unless it appeared from the papers presented that the court would be likely at the proper time to require the plaintiff to pay costs for mismanagement or bad faith in the prosecution of the action under section 3246. The minutes of the General Term show that the order was affirmed on the opinion of the judge at Special Term, and the order entered states that fact. It thus appears that only a single question was decided
The order at Special Term recites that it is made “ on reading and filing the decision of the court,” thus referring to the opinion which was the only decision made and which forms a part of the record. The order is not intelligible without reading the opinion, and it constitutes a part of the record, as much as the affidavits and notice of motion which are referred to in the earlier part of the order, and shows that the motion was denied upon the grounds stated in the opinion. The order of the General Term is also very specific and expressly states that the order of the Special Term was affirmed upon the opinion of the judge at such term.
In view of these facts we think the opinion must be considered as a part of the several orders referred to and as incorporated therein. There can be no doubt, therefore, as to the ground upon which the decision was based. While the opinion cannot ordinarily be referred to to show the ground upon which an order is made, this case is not brought within any such rule. The reason for the rule is, it forms no part of the record, and, therefore, cannot be referred to to explain the meaning of the record. (Salmon v. Gedney, 75 N. Y. 481.) Here the opinion constitutes an important and material part of the record and is expressly referred to in the orders.
The order not being discretionary, and the motion being disposed of for want of power, we are called upon to consider whether the courts committed an error in denying the motion
The provisions of the Code relating to the subject are sections 3246 and 3271, and each is independent of the other and contained in different titles and separated from each other by other provisions which do not bear any special relation to the subject-matter of the sections cited. The former section, 3246, relates to the awarding and enforcement of the payment of costs, and the latter section, 3271, to security for costs. Neither one refers to the other and it does not appear that they are in any way connected. It is only by inference that it can be claimed that the latter section is controlled or limited by the former. Section 3246 provides that, “In an action by or against an executor or administrator in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or be sued * *• * costs are exclusively chargeable upon and collectible from the .estate, fund or person represented, unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution or defense of the action.” This section is applicable to both plaintiffs and defendants acting in a representative capacity, and it also refers to costs in a final judgment rendered in an action. Section 3271 provides that, “ In an action by or against an executor or administrator in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or to be sued, or by an official assignee, the assignee of a receiver, or the committee of a person judicially declared to be incompetent to manage his affairs, the court may, in its discretion, require the plaintiff to give security for costs.” This section refers to three classes of parties not included in section 3246, viz.: First, an official assignee; second; the assignee of a receiver, and third, the committee of a person judicially declared to be incompetent to manage his affairs. The effect of construing the two sections together
We think these sections very evidently are to be construed separately and independently of. each other; they apply to different cases, and upon no sound principle can it be held that section 3271 is to be limited in its operation by section 3246. Some authorities are cited and relied upon to sustain the position contended for by the respondent’s counsel, and the principal case referred to is that of Darby v. Condit (1 Duer, 599" court="None" date_filed="1852-10-16" href="https://app.midpage.ai/document/darby-v-condit-8316277?utm_source=webapp" opinion_id="8316277">1 Duer, 599), which has been followed by several decisions at Special Term. This case is claimed by the appellant’s counsel to be overruled by a decision in the same court in More v. Durr (45 N. Y. Super. Ct. 154) and a contrary rule laid down. Without considering the question whether there is a conflict in these decisions we cannot resist the conclusion that the case of Darby v. Condit (supra) is not a well-considered case and should not be followed.
We do not deem it necessary to examine more at length the authorities cited in this connection, and we are satisfied that,
The orders of the Special and General Terms should, therefore, be reversed, without costs, and the proceeding remitted to be heard at Special Term that its discretion maybe exercised upon the merits.
All concur, except Euger, Ch. J., who did not sit.
Ordered accordingly.