
    KELLY v. KELLY.
    (Supreme Court, Appellate Division, Third Department.
    December 3, 1902.)
    1. Costs — Security—Suit against Incompetent’s Committee.
    Code Civ. Proc. § 3271, provides that, in an action by the committee of an incompetent, the court may require the plaintiff to give security for costs. Held, that the plaintiff in an action against the committee of an incompetent cannot by such section be required to give security for costs.
    Appeal from special term, Rensselaer county.
    Action by Hanorah Kelly against Michael J. Kelly, as committee of the estate of Mary Ann Kelly, an incompetent. From an order requiring plaintiff to give security for costs, she appeals!
    Reversed.
    Argued before PARKER, P. J., and KELLOGG, SMITH, CHASE, and CHESTER, JJ.
    John T. Norton, for appellant.
    John P. Curley, for respondent.
   PER CURIAM.

By section 3271 of the Code of Civil Procedure the court is authorized, in its discretion, to require the plaintiff to give security for costs in an action brought by the committee of a person judicially declared to be incompetent to manage his affairs. No authority is therein given to require security for costs in an action brought against such committee. If we assume, for the argument, that prior to the Code provision the court had power to require security for costs in certain cases, the express permission contained in section 3271 to require security in an action brought by a committee would seem to contain an implied denial of the right to require security in an action brought against such a committee. This implication would also seem to be strengthened by the first provision of the section, which authorizes security to be given in certain cases when brought by or against an executor, etc.

The order should be reversed, with $10 costs and disbursements.  