Winchester v. Browne 27 N.Y. St. Rptr. 361

George C. Winchester, Resp’t, v. T. Quincy Browne, App’lt.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Costs—Security for.

An order of general term reversing an approval of the sufficiency of an undertaking for costs gave the plaintiff perm-'ssion to “substitute other security in the place and stead of the undertaking disapproved.” Held, that this allowed the deposit of money instead of giving a new undertaking.

Appeal from order denying defendant’s motion to dismiss the complaint upon the ground that the plaintiff had not given security for costs under a previous order of the court.

Plaintiff, in April, 1887, was ordered to give security for costs, by depositing $250, or by filing an undertaking for $1,000. Subsequently, and on December 22, 1887, a motion to dismiss the complaint was denied, provided the sureties on an undertaking then tendered should justify or new sureties be given. The un*362dertaking given was signed by the Fidelity & Casualty Co., which justified, and the undertaking was approved, but the order of approval was reversed on appeal by the general term. The order of reversal contained the following clause: “ It is further ordered that plaintiff may within ten days from the date of this order substitute other security in the place and stead of the undertaking so disapproved as aforesaid." The general term refused to resettle the order so as to read that he might “ substitute another undertaking in accordance with the order of December 22, 1887.” Plaintiff deposited $1,000 in cash, and gave notice thereof to defendant’s attorneys.

Henry Schmitt, for app’lt; A. W. Otis, for resp’t.