
    Frederick J. De La Fleur, as Receiver in Proceedings Supplementary to Execution, etc., Plaintiff, v. Francis E. Barney et al., as Executors, etc., Defendants.
    (Supreme Court, Oneida Special Term,
    December, 17, 1904.)
    When receiver in supplementary proceedings not required to give security for costs of action — Leave to sue.
    A receiver in proceedings supplementary to execution will not be compelled to give security for costs in an action on the ground of insolvency, or because he has n'o funds. It is necessary to show in addition that the action is brought in bad faith, or heedlessly, or that the plaintiff probably will not succeed.
    Such receiver, not having obtained" leave to sue, may obtain and enter an order granting leave nunc pro tuno.
    
    Motion by the defendants to compel the plaintiff, as receiver, to file security for costs.
    P. H. Fitzgerald, for motion.
    Charles S. Kent, opposed.
   Wright, J.

The motion must be denied. The plaintiff, as receiver, will not be compelled, to file security for costs merely on the ground of insolvency, or that he has no funds in his hands. . It is necessary, in addition to the fact of insolvency to show that the action was brought in bad faith or heedlessly or that the plaintiff will probably not succeed. Hale v. Mason, 86 Hun, 499; Ridgway v. Symons, 14 Misc. Rep. 78. Supreme Court Rule 77.

The plaintiff not having obtained leave of the court to bring this action, he may enter an order nunc pro tunc granting him leave to bring it. Hirshfeld v. Kalischer, 81 Hun, 606. No costs allowed.

Motion denied, no costs.  