#### John W. Crowell, Individually, and as Executor, Etc., of Sarah Decker, Deceased, Plaintiff, *v.*Charles M. Bills, Mary C. Sigison et al., Defendants.

(Supreme Court, Broome Special Term,

August, 1898.)

Foreclosure by an executor, a nonresident —. Security for costs.

Upon a motion made by certain defendants, in an action brought, to foreclose two mortgages, to compel the plaintiff to give security for costs, it appeared that the plaintiff, a nonresident, sued as the individual owner of one mortgage and as the owner, as executor, of the other; that he alleged that the defendants in question averred that they owned the mortgages, and it further appeared that there were creditors of the estate of the plaintiff’s testatrix and that the-bond, which one of the mortgages secured, was substantially the only available asset of the estate of the testatrix.

Held, that it was improper to require the plaintiff, as executor, to. give security for costs.

Motion by defendants Sigison, Chester and Bonnell for security for costs in an action of foreclosure.

• The action was to foreclose two mortgages on the same premises, one given and the other assumed by defendant Bills, both of which had been owned by plaintiff’s testator. Plaintiff individually alleged ownership of one by recorded assignment, alleging the moving defendants to claim its ownership by prior unrecorded assignment; plaintiff, as executor, alleged ownership of the other, alleging the moving defendants to claim ownership under a recorded assignment, which he alleged to be testamentary in fact and law, and revoked by his testator’s subsequent will, which appointed him executor.

The motion for security for costs was based on the nonresidence of the plaintiff, and statements in the moving affidavits that the plaintiff had no property except the alleged claim in suit. Other facts appear in the opinion.

Roswell R. Moss, for plaintiff.

King & Chamberlin, for moving defendants.

*412Lyon, J.

I do not think that Crowell, as executor, should be compelled to give security for costs. Unless he should be, the motion must be denied, although the executor individually is also a party plaintiff, and is a non-residént. McDougal v. Cray, 15 Civ. Pro. 237.

The answer alleges that there are creditors of the estate of Sarah Decker, deceased. The estate must, therefore, be administered for the benefit of others as well as plaintiff Crowell, and as this alleged asset of the estate is a bond secured by a mortgage upon lands within this state, and is substantially the only available asset, the executor is compelled to institute these proceedings for the foreclosure of this mortgage within the state, and inasmuch as the moving defendants claim to be the owners of the bond and mortgage the plaintiff is compelled to make' them parties to the action. -. \ ■

The moving defendants are as much interested as the plaintiff in the determination of the ownership of this bond and mortgage. They claim to own the bond and mortgage. The- mortgagor refuses to pay any person until the rights of the rival claimants have been determined. Two of the moving defendants are themselves- nonresidents. Unless this action is prosecuted, the moving defendants must themselves bring an action similar "to this action brought by plaintiff, making the plaintiff herein a party defendant.

1 think the court would not, under the circumstances, be justified in granting a motion requiring, the plaintiff to' give security for costs, and that the motion should be denied.

Motion denied.