Tolman v. Syracuse, Binghamton & New York Railroad
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made January 9, 1883, which affirmed an order of Special Term denying a motion on behalf of defendant, that plaintiff be required to file security for costs. This court will, upon appeal, review the “determination of the courts below even upon a discretionary order where it appears that the decision was based on the ground of a want of power to grant the application.
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Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made January 9, 1883, which affirmed an order of Special Term denying a motion on behalf of defendant, that plaintiff be required to file security for costs. This court will, upon appeal, review the “determination of the courts below even upon a discretionary order where it appears that the decision was based on the ground of a want of power to grant the application. (Tilton v. Beecher, 59 N. Y. 176; Beech v. Chamberlain, 3 Wend. 366; Russell v. Conn, 20 N. Y. 81; Tracy v. Altmeyer, 46 id. 598;…
1Opinion of the CourtMiller, J.
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…
2Cases cited4 opinions
- Tilton v. . BeecherNew York Court of Appeals · 1874
- Russell v. . ConnNew York Court of Appeals · 1859
- Darby v. ConditThe Superior Court of New York City · 1852
- Salmon v. . GedneyNew York Court of Appeals · 1878
3Cited by22 opinions
- Anderson v. . AndersonNew York Court of Appeals · 1889
- Koehler v. . HughesNew York Court of Appeals · 1896
- United States, Ex Rel. v. C., O. G. R. R. Co.Supreme Court of Oklahoma · 1895
- Pursley v. RodgersAppellate Division of the Supreme Court of the State of New York · 1899
- Matter of Assignment of HolbrookNew York Court of Appeals · 1885
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