In re the Estate of Yedlin

John D. Bennett, S.

This is an application by a foreign executrix which requests that petitioner be required to furnish security for costs. The proceeding is one for letters of administration in which the petitioner is a nonresident.

The respondent received letters testamentary in Florida. It is claimed that the petitioner herein appeared in that proceeding and had his day in court, and that the Florida decree is res judicata. In connection therewith the petitioner has insisted on the production of certain Florida records to be furnished by the estate, the cost of which would be in addition to the normal costs and disbursements of such a proceeding.

The petitioner urges that for the Surrogate to grant this application would be in effect to ‘ ‘ prejudge the matter-in-chief now before him ’ ’, and that the primary consideration is whether ‘ ‘ the petitioner has acted in good faith and upon reasonable grounds ”. In addition, petitioner has submitted an affidavit in which he stresses that he is in poor financial condition and cannot afford to give security for costs in this proceeding.

The attorney for the executrix points out that the estate has already incurred in excess of $250 in expenses in this proceeding for the cost of the Florida record.

Section 282 of the Surrogate’s Court Act specifically grants the Surrogate the power, in his discretion, to require security for costs from any nonresident petitioner, where such security is necessary for the protection of the estate. By granting an application for security for costs, the court in no way deter: mines the merits of the case, and regardless of the good faith and the reasonableness of the petitioner, if the court finds such security necessary for the protection of the estate, it may be granted.

In this case the court finds that security for costs is necessary for the protection of the estate, and grants the application to the extent that the petitioner is required to give such security in the sum of $500 without prejudice to a further application by the executrix for an increase if necessary.

Settle order on five days’ notice in accordance herewith, with three days to be added if service is by mail.