
    Sarah McNeil, as Administratrix, etc., of Paul McNeil, Deceased, Appellant, v. William H. Merriam, Respondent.
    
      Security for costa—not required of a poor person, suing as administratrix for the death of her husband, of whose estate the cause of action is the principal asset—• notice of the motion.
    
    In an action by an administratrix to recover damages resulting from the death of her intestate, an affidavit of the defendant’s attorney alleging that from a statement of the case made to him by the defendant he believes that the defendant has a good and substantial defense upon the merits, does not justify the court, in exercising the discretionary power conferred upon it by section 3271 of the Code of Civil Procedure, by requiring the plaintiff to give security for the costs, especially where it appears that the plaintiff is the real party in interest and is a very poor person, and that the cause of action is the principal asset of the intestate’s estate.
    
      Semble, that a motion addressed to the discretion of the court, under section 3271 of the Code of Civil Procedure, must be made on notice.
    Appeal by the plaintiff, Sarah McNeil, as administratrix, etc., of Paul McNeil, deceased, from an order of the Supreme Court, made . at the Kings County Special .Term and entered in the office of the clerk of the county of Kings on the 1st day of November, 1900, denying a motion to vacate and set aside an ex parte order directing the plaintiff to give security for costs.
    
      Alfred G. Gowan, for the appellant.
    
      Charles L. Gohn, for the respondent.
   Woodward, J.:

This action was brought under the provisions of section 1902 of the Code of Civil Procedure for damages for the loss of the life of plaintiff’s husband through the alleged negligence of the defendant. Defendant’s attorney made an ex parte motion before the court at Special Term to compel the plaintiff to give'security for the costs in the action. This motion was granted upon the affidavit of the defendant’s attorney, who, in addition- to the formal averments, states that he has examined the records in the clerk’s office and finds no deposit made or ponds or undertakings filed by or on behalf of the plaintiff for’ security, and from a statement of the case in this action made to me by the defendant I verily believe that hé has a good and substantial defence upon the merits to the cause of action set forth in the complaint.” On these ground's alone the motion was made and the order granted, compelling the plaintiff to deposit $250 or to give security for the costs. Plaintiff’s attorney subsequently made a motion to vacate this order, and an order to show cause why the order should not be set aside was served on defendant’s attorney, but upon the hearing of the motion it was denied, and from the order denying this motion this appeal is taken.

By the provisions of section 3271 of the Code of Civil Procedure the court is given a discretionary power to require the plaintiff, in an action brought by an executor or administrator, to give security for the costs, but this discretion must have some basis of fact; it is not the discretion of the judge but of the court which is demanded, and this contemplates a judicial discretion, and was evidently designed to put it in the power of the court to prevent.improvident litigation on the part of persons acting in a representative capacity, rather than to defeat the legal rights of persons. “ When,” says Mr. Justice Barker, in Wood v. Blodgett (49 Hun, 64), “ the application is based upon the provisions of section 3271, notice of motion is required, and the application must be made to the. court,” while in the matter now before us the motion was made and granted ex parte. The general rule is that parties may put their claim before a competent court without any obligation to secure costs to the opposite party in case of failure (Fessenden v. Blanchard, 48 Hun, 350),. and in the present instance it appears that the estate consists principally of the present cause of action. To require a plaintiff, such as this one, who is described in the affidavit of her attorneys as “ a very poor person,” to give security for costs in every case in an action on which depends her only hope of that. support which has been denied her through the death of her husband, is far from the purpose of the provision of the Code under which the order was granted. The claim is, upon its face, meritorious, and the mere allegation of the defendant’s attorney that his client is believed to have a good defense is not a sufficient groundwork for the interposition of the discretion confided in the court. Ho special ground is presented for the exercise of such discretion. The plaintiff in this action, although appearing as administratrix, is in fact the real party in interest. The court is not justified in extending its dis-a case of this character, unless it is manifest that there is bad faith involved or some other serious objections to the party pro- ceeding without the guaranty provided for by the Code. When the defendant invokes discretion -under'-section 3271 he must apply to the court, and necessarily upon notice. (Pursley v. Rodgers, 44 App. Div. 139, 142.) . In the absence of such- procedure this court will not presume that plaintiff’s attorney has waived any of the rights of his client in support of an order which may deprive the plaintiff of the power of enforcing a meritorious claim. The order

appealed from should be reversed and the order grant- ing defendant’s motion should be vacated and set aside, with costs. All concurred,

except Sewell, J., taking no part. Order reversed,

with ten dollars costs and disbursements, and- motion to vacate' order requiring security for costs .granted, with ten dollars costs. 57 mi  