#### Johannes E. Schroeder and Herman R. Brauss, as Ancillary Administrators of Johannes Schroeder, Deceased, Appellants, v. Albion L. Page, as Ancillary Executor, etc., of John M. Young, Deceased, Respondent.

First Department,

February 7, 1908.

Practice — additional security for costs.

The right to additional security for costs is purely a creation of the statute, and that right must be found in section 8976 of the Code of Civil Procedure or it does not exist.

As said section does not in express terms entitle a party to further or additional security when additional security has once been given, there is no right thereto.

In any event, where a non-resident plaintiff has once given both security and additional security, and appeals from a judgment dismissing the complaint without *giving*security to stay execution, and- there is nothing to show that he is pecuniarily unable to pay the judgment or any further judgment the defendant may obtain, the latter is not entitled to further additional security, for he may proceed in the regular way to collect his judgment.

Appeal by the plaintiffs, Johannes E. Scliroeder and another, as ancillary administrators, etc., 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 on the 6th day of December, 1907.

*Edward A. Alexander,*for the appellants.

*Alfred B. Oruileshanlc,*for the respondent.

*254McLaughlin, J.:

This appeal is from an order requiring plaintiffs, non-residents, to give $500 additional security for costs. Before answering the defendant demanded $250 security for costs, which was given pursuant to an order of the court. Sometime thereafter a motion was made by defendant for additional security. The motion was granted and $750 more was paid into court, and at the present time, with accrued interest, there is on deposit with the. city chamberlain'the sum of $1,050. Thereafter, the action.was tried and the complaint dismissed, with costs, and judgment was subsequently entered against plaintiffs for the costs, which amounted to $1,361.63. The plaintiffs have appealed from this judgment, which appeal is now pending and undetermined, bio security has been given to stay execution, however, upon the judgment. After the appeal had been taken, the defendant made a motion that the plaintiffs give additional security. The .motion was granted and plaintiffs directed either to pay into court the sum of $500 in addition to the sum theretofore deposited, to' be applied to the payment of costs, or at their election file an undertaking with one or more sureties, to the effect that they will pay on demand to the defendant all costs which may be awarded to him in this action, not exceeding $500, in addition to any sum theretofore deposited as security. It is from this order that the present appeal is taken.

The respondent contends that he is entitled to additional security under the provisions of section 327.6 of the Code of Civil Procedure. This section, so far as material, provides that at any time after the allowance of an undertaking, or after notice of the payment into court, in pursuance of such order, the court, .upon .satisfactory proof by affidavit that the sum specified in the undertaking or the amount of such payment is insufficient, or that one or more of the sureties have died or become insolvent or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant, must make an order requiring the plaintiff to give an additional undertaking or make an additional payment into court.

The right to require additional security for costs is purely a creation of the statute and authority therefor must be found in the statute, or it does not exist, *(Republic of Honduras*v. *Soto,*112 *255N. Y. 310.) The only statute which gives a party the right to additional security is the section of the Code of Civil Procedure above referred to and this, it will be observed, does riot in express terms give a party the right to further or additional security when such security has theretofore been given.

But if it be assumed that under certain circumstances such further or additional security may be required, then I am of the opinion under the facts here presented this motion should have been denied. Where security is directed to be given, a plaintiff may neglect or refuse to comply with the order and the only penalty to which he is subjected is a dismissal of the complaint, with costs. (See Code Civ. Proc. § 3277.) This would seem to indicate a legislative intent that security could not be required after the complaint had been dismissed. Here, before the application which resulted in the order appealed from was made, the action had been tried, complaint dismissed and judgment entered against the plaintiffs, and there is nothing to show that the plaintiffs are not pecuniarily able to pay such judgment, or any further judgment that the defendant may obtain. It is not alleged that they are insolvent, nor are any facts stated showing their inability to pay. It is true plaintiffs have appealed from the judgment, but this does not stay execution thereon and no reason is given why defendant should not proceed in the regular way to collect his judgment. To require security at this stage of the action is, in effect, to require security for the payment of the judgment. *(Dunk*v. *Dunk,*177 N. Y. 264.)

I am of the opinion, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

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