McDougal v. Gray
New York Supreme Court
Action by George McDougal, individually and as executor, against Gray and others, to construe a will. Plaintiff moves to vacate an ex parte order requiring him to give security for costs because of his non-residence. Code Civil Proc. § 3268, provides that the defendant may require security for costs to be given in an action commenced by a person residing out of the state.
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Action by George McDougal, individually and as executor, against Gray and others, to construe a will. Plaintiff moves to vacate an ex parte order requiring him to give security for costs because of his non-residence. Code Civil Proc. § 3268, provides that the defendant may require security for costs to be given in an action commenced by a person residing out of the state. Section 3271 provides that, in an action by or against an executor in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs.
1Opinion of the CourtSmith, J.
This action was brought to construe a will. Some of the defendants procured an order ex parte that the plaintiff give security for costs. This is a motion to vacate that order. The plaintiff appears in the complaint both individually and as executor. The case, therefore, stands as though there were two plaintiffs,—one, the individual; the other, the executor. If security for costs can be obtained in such a case, under section 3268 of the Code, then the order was properly granted ex parte. If security, from a nonresident executor, however, can only be obtained under section 3271, then the…
2Cases cited1 opinion
- Hall v. WaterburyNew York Court of Common Pleas · 1879
3Cited by3 opinions
- Caccavo v. Rome, Watertown & Ogdensburg RailroadThe Superior Court of the City of New York and Buffalo · 1891
- Dunne v. American Surety Co.New York Supreme Court · 1899
- Flynn v. TinneyNew York Supreme Court · 1899