Schmidt v. Eiseman , 26 N.Y.S. 766 ( 1893 )

Clement, Ch. J.

This action was brought to recover for labor and services alleged to have been performed for Gertrude Sober, of whose estate the defendant is executor. Defendant applied at Special Term for an order requiring the plaintiff to give security for costs under section 3271 of the Code. The motion was denied, and an appeal was thereupon taken.

Security for costs, under this section, may be granted or refused in the discretion of the court, although there is no proof of bad faith. Tolman v. R. R. Co., 92 N. Y. 353. The counsel for appellant invokes the rule suggested in Caccavo v. Rome, etc., R. R. Co., 13 N. Y. Supp. 884, that if poverty is conceded the party must satisfy the court that a good cause of action is set forth. Assuming the correctness of the rule, we think that the plaintiff in this case did show a fair probability of a recovery. In the case cited the allegations in the complaint were made on information and belief, and the sources of the information were not set forth, and in the case before us the plaintiff states in her complaint a good cause of action, and sustains the same by an affidavit which must have been made of her own knowledge. The discretion in the court below has not been abused.

The order should be affirmed, with ten dollars costs and disbursements, to be taxed by the clerk.

Vax Wyck, J., concurs.

Order affirmed, with costs.