Swift v. Wheeler.

nard v. Cazeaux, 1 Paige Ch. 39. Applications under sections 3268 and 3269 of the Code of Civil Procedure are such exceptions, and the order is a matter of right, while an application under section 3271 is addressed to the discretion of the court, and must be governed by the Healey v. Twenty-third

2

general rule requiring notice. St. R. R. Co., 1 N. Y. Civ. Pro. 15; Tolman v. S. B. & N. Y. R. R. Co., 92 N. Y. 359. It is unquestionable that under the old practice an order like the present would be made only upon notice of motion. Wait Pr. 573; Cadwell v. Manning, 15 Abb. Pr. 271; Champlin v. Pierce, 3 Wend. 445; Blanchard v. Nessle, 6 Hill, 256. It is absurd to hold that the Code of Civil Procedure compels a change in this respect. If there be no notice required, and no difference made between the right given in one class of cases and the discretion given the court in the other; why should the application in the latter case be made to the court, and why the labored division of cases under one or the other head? Why is the court given discretion, if that discretion be coerced, and the "must " applicable to the one class as well as the other? I have been unable to find in the books a case under section 3271 which fails to show an application upon notice. Notice has, since the adoption of the Code of Civil Procedure, often been decided essential in applications for the exercise of discretion in requiring security. Buckley v. Gutta Percha Mfg. Co., 3 N. Y. Civ. Pro. 428, 432; affirmed, 93 N. Y. 637; McDonals v. Peet, 7 Id. 200.

The learned special county judge says that the case of Robertson v. Barnum, 29 Hun, 657, disposes of this question. I submit that the case referred to does nothing of the kind, but instead, holds that as the order granted in that case was one to which the moving party was of right entitled, therefore, and therefore only, was it properly made er parte. In the case at bar, the order made was not one to which the defendant was entitled of right

Swift v. Wheeler.

or at all, but one which the court might make in its discretion. The order being made ex parte, and being irregular, should be set aside on motion.

The plaintiff should not, in a case like this, be compelled to give security. No sufficient cause appears. 2 Wait Pr. 568: Ryan v. Potter, 4 N. Y. Civ. Pro. 80; Carney v. Barnheimar, Id. 233 note; McEntee v. McEntee, 4 N. Y. Month. Law. Bul. 20; 2 N. Y. Civ. Pro. 94 note. Security is required on account of the irresponsibility of the representative, not of the estate; and protects not the opposite party, but the trust estate. Code Civ. Pro. $ 3271. There is no suggestion that the executrix is insolvent. No court has exercised its discretion in this matter after a hearing (see opinion), and the plaintiff desires that she be somewhere heard and quitted. The court had no jurisdiction to require security in this action. The cause of action accruing after the death of the testatrix, this suit could have been brought by the executrix individually; and the fact that she describes herself as executrix neither absolves her from costs, nor charges them upon the estate which she represents. The action is not brought in her representative capacity, within the provisions of the Code of Civil Procedure. Buckland v. Gallup, 105 N. Y. 453.

Ivan Powers, for defendant-respondent.

The order requiring security was properly granted ex parte. Code Civ. Pro. § 3271, 3272; Robertson v. Barnum, 29 Hun, 658. Section 3271 permits the court, in its discretion, to require the plaintiff to give such security, and section 3272, after providing for the form of the order, directs that all other proceedings on the part of the plaintiff, except to review or vacate the order, shall be stayed, until the payment, or filing, or notice thereof, and if an undertaking be given, then until the allowance of the same. The court might have required notice of the application for the order to be given to the plaintiff,

Swift v. Wheeler.

The language of

but it was not compelled to do so. section 3272, supra, that all proceedings on the part of the plaintiff shall be stayed, except to review or vacate the order, clearly indicates that the order can be an ex parte one; for if notice of the application for it was required to be given, the words "except to review or vacate" would be superfluous. The cases cited by the plaintiff have no application here, as they are under the statutes of different language; and furthermore, they must be deemed to be overruled by said modern case of Robertson v. Barnum, supra. The order requiring security for costs was properly granted upon the merits. Tolman v. S. B. & N. Y. R.R. Co., 92 N. Y. 353, 358, overruling Darby v. Condit, 1 Duer, 599, and other cases to the contrary.

The order to show cause on motion to vacate order requiring security did not specify any irregularity com plained of. Rule 37, Gen. Rules Prac. The order requiring security, being granted ex parte, and not upon notice, was but an irregularity (Bronson v. Freeman, 8 How. Pr. 492), which was required to be specified in the order to show cause upon said motion to vacate. Furthermore, it being discretionary with the county court to grant or withhold it, this court, upon appeal, will not review the exercise of such discretion. Myers v. Riley, 36 Hun, 20, 22, 23; aff'd by court of appeals, June, 1887, upon authority of Reilley v. President, &c., D. & H. C. Co., 102 N. Y. 383, 386; Kugelman v. Rhodes, 36 Hun,

269.

SMITH, P. J.-After issue joined, the defendant, Wheeler, moved the county court, ex parte, for an order requiring the plaintiff to give security for costs, and thereupon an order was granted requiring the plaintiff to give security within ten days after service of a copy thereof, and staying the plaintiff's proceeding, until compliance with the order. The plaintiff thereafter moved the court,

Swift v. Wheeler.

upon an order to show cause, to vacate such order. The order to show cause recited that it appeared to the court that the first order was made without notice, and that there was no sufficient ground for requiring the plaintiff to give security as therein required. The motion to vacate was denied, and from the order denying such motion this appeal is taken.

The order requiring security for costs to be given, having been made without notice to the plaintiff, was irregu lar. The application for such order was made under section 3271 of the present Code,-which provides that in an action brought by or against an executor or administrator, in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs. The preceding sections, 3268 and 3269, provide that in the cases specified therein, respectively, the defendant may require security for costs to be given. Section 3272 provides that where security for costs is required to be given, the court in which the action is pending, or except in a case specified in section 3271, a judge thereof upon due proof, by affidavit, of the facts, must make an order requiring security to be given as therein provided.

The appellant's counsel is understood to contend that an application under either of the sections 3268, 3269 or 3271 may be made without notice. The respondent's counsel concedes the position in respect to motions under either of the first two sections referred to, but he contends that an applicationn under section 3271 cannot be made regularly, ex parte. We think the position of the respondent's counsel is correct. Under the old practice a motion for an order requiring the plaintiff to file security for costs, as provided by the Revised Statutes (2 R. S. 620, § 1), could only be made on notice, or, what was the same thing, on service of an order to show cause (Champlin v. Pierce, 3 Wend. 445; Blanchard v. Nessle, 6 Hill 256). The Code has not changed the practice in that respect, as to motions under section 3271. And a motion of that

Channing v. Moore.

nature is no exception to the general rule of the court requiring motions to be brought before the court on notice or order to show cause (Rule 37).

The respondent's counsel contends that the motion to vacate was properly denied because the irregularity was not specified. We think the recital in the order to show cause was a sufficient compliance with the rule in that regard. As the order requiring security for costs to be given was irregular, we do not consider the merits of the application.

The order denying the motion to vacate should be reversed with ten dollars costs and disbursements of this appeal to the appellant.

BARKER, HAIGHT and BRADLEY, JJ., concurred.

CHANNING v. MOORE, IMPLEADED, ETC.

CITY COURT OF NEW YORK, TRIAL TERM, JANUARY, 1888.

§ 66.

Attorney's lien-Right of set-off.

The right of set-off is a sort of natural equity that cross demands should compensate each other by deducting the less from the greater, that the difference between the two may be regarded as the debt. Where an attorney prosecutes or defends an action under an agreement with his client that the costs to be awarded are to belong to him as his compensation for his services, the agreement is valid, and makes the attorney the owner of a judgment recovered in such action for costs, and of all security for their payment, and effectually defeats any right to set-off. which one of the sureties upon the undertaking for the payment of all costs awarded in the action might otherwise have had against the judgment creditor.

The rule in regard to set-offs is at times enlarged when necessary to prevent an injustice, but it is never extended beyond strict legal