Schmidt v. Eiseman 26 N.Y.S. 766, 6 Misc. Rep. 264

Clement, C. J.

This action was brought to recover for labor and services alleged to have been performed for Gertrude Scher, of whose estate the defendant is executor. Defendant applied at special term for an order requiring the plaintiff to give security for costs, under Code, § 3271. 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. Railroad Co., 92 N. Y. 353. The counsel for appellant invokes the rule suggested in Caccavo v. Railroad Co., (Super. N. Y.) 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 beliéf, 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 samé by an affidavit,' which must have been made of her own knowledge. The discretion in the court below has not been abused. Order affirmed, with $10 costs and disbursements, to be taxed by the clerk