Kamermann v. Eisner & Mendelson Co. ( 1898 )

Beekman, P. J.

We do not agree with the court below that the granting of the order requiring security for costs to1 be given was irregular because not made upon notice. It seems from the opinion that the General Term considered the case as coming within section 3271 of the Code of Civil Procedure, which in certain cases makes it discretionary with the court whether or not such security shall be required. In the cases there provided for, it is true that the order can be granted only upon notice; but the order in question was made, and properly so; under section 3268 of the Code, which provides that security for costs may be required by the defendant where the plaintiff is (subdivision 5) “an infant whose guardian ad, litem has toot given such security.”

In such a case it is well settled that, if the motion therefor be seasonably made, the granting of ¡ ’the order is mandatory, does not rest in discretion and may be made ex parte. Wood v. Blodgett, 49 Hun, 64; Churchman v. Merritt, 50 id. 270. If, therefore, the order of affirmance had recited the fact that it was made on the ground that the 'order in question was irregular because not made upon notice, we should have felt constrained to reverse it, but it fails to do so; and as it is well settled that we cannot look into the opinion below for the purpose of finding, grounds for reversal, it follows that the order appealed from must be sustained'if any ground for its support is discoverable from the papers upon which it was made.

It does appear from the ■ affidavit' of the attorney for the respondent that at the time the order requiring security to. he given was made the guardian, had filed the requisite undertaking, although the attorney for the appellant was not aware of the fact. Under these circumstances, by the terms of the section of the Code above referred to, the appellant Was not entitled to such an order, and we must assume that the court below affirmed the order vacating it on that ground. It follows that the order appealed from must he affirmed, with costs.

Gildersleeve and Giegerich, JJ., concur.

Order affirmed, with costs.