
    Mannie Frank, as Trustee, etc., Plaintiff, v. Isaac Musliner et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1899.)
    Costs — When security is not exactable of a plaintiff trustee in bankruptcy — Code Civ. Pro., § 3268, subd. 4.
    Section 3268, subdivision 4 of the Code of Civil Procedure, giving a defendant a right to exact security for costs from a plaintiff assignee in bankruptcy where the action is brought upon a cause of action arising before the appointment of the trustee or an adjudication in bankruptcy, has no application to an action by the trustee founded upon a transfer made by bankrupts within four months of adjudication, as such a cause of action becomes complete only with the adjudication.
    Motion to require the plaintiff, the trustee iu bankruptcy of Domonico Colucci and Hicola Granieri, composing the firm of Colucci & Granieri, to give security for costs under subdivision 4 of section 3268 of the Code of Civil Procedure.
    The opinion states the material facts.
    Myers, Goldsmith & Bronner (Emanuel J. Myers, of counsel), for motion.
    Samuel Fleisehman, opposed.
   Giegebich, J.

Security is not required, as of right, under the fourth subdivision of section 3268 of the Code of Civil Procedure, where a trustee in bankruptcy is the plaintiff, unless the cause of action is one arising before * * * the appointment of the trustee or the adjudication in bankruptcy.” Here the cause of action is fohnded upon the fact of a transfer by the bankrupts within four months of the adjudication in bankruptcy, and the right of the trustee to maintain the action depends upon the adjudication having fallen within that period. Clearly, then, the cause of action became complete only with the adjudication, and was to be distinguished from the class of accrued demands to which the statute has reference. As matter of right, therefore, the defendants’ motion is not necessarily to be entertained, and, so far as my discretion is appealed to, I deny the application, it being apparent, upon the defendants’ admissions, that the plaintiff must succeed in the action to some extent.

Motion denied, no costs.  