
    Sarah Kamermann, by her Guardian ad Litem, Becky Kamermann, Respondent, v. The Eisner & Mendelson Co., Appellant.
    (City Court of New York, General Term,
    February, 1898.)
    Security for costs from one authorized by statute to sue — Notice of such a motion.
    ., Where an application is made, under the Code of Civil Procedure,' § 3271, to compel a person expressly authorized by statute to sue,- e. g., an infant, to give security for costs, the motion must be made to the court, on notice, and an order made ex;parte is irregular.
    Appeal by the defendant from an order vacating an order directing the plaintiff to file security for costs.
    F. V. Johnson, for appellant.
    Langbein Bros. & Langbein, for respondent.
   Schuchman, J.

The order directing the pláintiff to filé security for costs was made ex parte. This was irregular. The irregularity is specified , in subdivision 6 of the moving papers. The order was, therefore, properly vacated. Under section, .326.8 of the Code, the defendant as an absolute right, may require the plaintiff to file security for costs, and under section 3272 the court must, in that case, make the order and can make it ex parte. When, however, the application is made under section 3271 which reads:

“ In an action brought by * * * a person expressly authorized by statute to sue- * * * ’the court may, in its discretion, require the plaintiff to give security for costs * * . *” then it must be made, on notice of motion, to the court. The plaintiff herein is a person expressly authorized by statute to sue (section 468), and this case falls, therefore, within section 3271. Wood v. Blodgett, 49 Hun, 64; Swift v. Wheeler, 46 id. 580; Healy v. Twenty-third St. R. R. Co., 1 Civ. Pro. 15; Ryan v. Potter, 4 id. 80.

Order appealed from affirmed, with $10 costs and disbursements.

O’Hwyeb, J., concurs. ' ■. *

Order affirmed, with $10 costs and disbursements.  