
    Lottie Schmalz, as Executrix, etc., of Fred Schmalz, Deceased, Respondent, v. William L. Crow Construction Company, Appellant.
    First Department,
    October 20, 1911.
    Costs — non-resident executrix suing to recover for death in this State — security for costs:— court — power of Appellate Division to review discretionary order.
    A non-resident widow who, having obtained letters testamentary in this State on the ground that her deceased husband, who was a non-resident, < left property here, on bringing a statutory action to recover for the death of her husband alleged to have been caused by the negligence of the defendant within this State, should be required to give security for costs. This is true even though it be shown that decedent left money on. deposit in a savings bank in this State, if it do not appear that the money was still on deposit when the action was brought, and if the amount thereof,'even though still on deposit, is wholly inadequate as security for the costs which may be awarded to the defendant.
    The discretion of the court in requiring a plaintiff to give security for costs in actions by or against executors, pursuant to section 3271 of the Code of Civil Procedure, is reviewable by. the Appellate Division.
    Appeal by the defendant, the William L. Crow Construction Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York oh the 30th day of June, 1911, as resettled by an order entered on the 29th day of August, 1911, denying the defendant’s motion for security for costs.
    
      Walter C. Stevens, for the appellant.
    
      Stuart G. Gibboney, for the respondent.
   Laughlin, J.:

This is a statutory action by a widow as executrix to recover for the death of her husband, alleged to have been caused by the negligence of the defendant within this State.

The decedent resided in New Jersey, but he died in New York, and his widow resides in. New Jersey, but letters testamentary on the last will and testament of her husband were issued to her by the surrogate of. New York county on the ground that he left property here. An' order for security for costs was granted on an ex parte application and vacated, with leave to renew the application under section 3271 of the Code of Civil Procedure upon notice. The order now under review recites that the motion was made pursuant to sections 3268, 3271 and 3272 of the Code of Civil Procedure. The motion was made oh the grounds of the non-residence of the plaintiff, and that the .action is brought by an executrix. It was shown in opposition to the motion that the decedent left within the State of New York “ a joint account in the German Savings Bank,' amounting at his death to the sum of One hundred and seventy dollars, and that he left no other property whatever, except a house and lot in East Eutherford, Bergen County, New Jersey,” the title to which was in his name and in the name of his wife.

In so far as the motion was made pursuant to the provisions of section 3271 of the Code of Civil Procedure, the court was undoubtedly called upon to exercise judicial discretion with' respect to the propriety of requiring security for costs to be given by the executrix (McNeil v. Merriam, 57 App. Div. 164), which discretion is reviewable here. If the plaintiff be a nonresident of the State within the purview of section 3268 of the Code of Civil Procedure the defendant was entitled to an order for security for costs' as matter of right. The phraseology of the provisions of that section indicates that the Legislature did not intend to vest any discretion in the court with respect to requiring a non-resident plaintiff, or other plaintiffs enumerated in that section, to give security for costs. By its express provisions the determination of the question as to whether security for costs shall' be required of a plaintiff therein enumerated is left solely to the defendant. It is provided, among other things, that “ the defendant, in' an action brought in á court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was' commenced, either

“1. A person residing without the State.” The phraseology of section 3271 of the Code of Civil Procedure is materially different, for there it is provided, among other things, that in an ■ action brought by or against an executor- or administrator in his representative capacity “the court may,'in its discretion, require the plaintiff to give security for costs.” Although the action is brought in a representative capacity it is brought solely for the benefit of the widow, who as executrix is the plaintiff, and who concededly is a non-resident of the State, and of her son four years of age who resides with her. It may be that the estate of the decedent is interested in the action to the extent that it may under section 3268 of the Code of Civil Procedure be liable for the costs of the action in the event that the plaintiff fails to recover — a question which we do not decide — yet it is clear that the cause of action is being enforced only for the benefit of non-residents and by a nominal plaintiff who is a non-resident. On like facts the members of this court sitting in Pursley v. Rodgers (44 App. Div. 139), in opinions delivered by Justices Barrett and Ingraham, expressed different views, but inasmuch as all agreed that security should have been required the question may not be said to have been decided, although some of the justices adopting the views expressed by Justice Ingraham placed their votes on the ground that defendant was entitled to security as matter of right, and others adopting the views of Justice Barrett were of opinion that the court in the exercise of its discretion should have required security for costs to be given.

In Clarendon v. Milliken Brothers, Inc. (116 App. Div. 930), the Appellate Division in the Second Department. appears to have decided that the plaintiff in such case is not a non-resident within the provisions of section 3268 of the Code of Civil Procedure, but this court in McKeaggan v. Post & McCord (117 App. Div. 129) intimated a contrary view. In these circumstances we shall defer expressing a decided view on the question until it is necessarily presented. In the opinions of this court in Pursley v. Rodgers (supra), Meaney v. Post & McCord (117 App. Div. 563) and Mills v. Nassau Bank (123 id. 514), wherein the question presented by this appeal was considered, stress was laid upon the fact that it did not appear that the decedent left any property within the State, and that the appointment here of a personal representative for his estate was apparently solely for the purpose of bringing the statutory action. In the case at bar, on the evidence quoted, it is claimed that the decedent left property within the State which would he applicable to the payment of the costs. It does not appear that the money was in the bank when the action was brought and the motion made, and it is manifest that the interest of the decedent in it would he wholly inadequate for the purpose of securing the payment of costs that may be awarded to the defendant. The case, therefore, falls within the principle, if not within the letter, of section 3268 of the Code of Civil Procedure and the court should have granted the motion.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

McLaughlin, Clarke and Miller, JJ., concurred.

Ingraham, P. J.:

I concur on the ground that the defendant was entitled to security for costs as a right under section 3268 of the Code of Civil Procedure.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  