#### Sarah Kamermann, an Infant, Etc., Respondent, *v.*The Eisner *&*Mendelson Co., Appellant.

(Supreme Court, Appellate Term,

April, 1898.)

1. Security for costs from infant plaintiff — When notice must be given to the plaintiff.

An order, made under subdivision 5 of section 3268 of the Code of Civil Procedure, permitting a defendant to require security where the plaintiff is “ an infant whose guardian *ad litem*has not given such *331security,” is an *ex parte*matter and requires no notice ,to the plaintiff; .but where such an order is procured under section 3271 of the same Code, making security discretionary, notice must be given.

0. Same — Prior security voluntarily given by the, guardian ad! litem.

Where the guardian *ad litem*of an infant has already given security before the defendant has applied therefor under subdivision 5 of section 3268, the application must be denied and an order of the General Term of the City Court of New York, vacating an order requiring the plaintiff to give security, must be affirmed.

Kamermann v. Eisner & Mendelson Co., 22 Misc. Rep. 554, affirmed.

Appeal from an order of the General Term of the City Court of the City of New York, affirming an order made at Special Term of said court vacating an order requiring the plaintiff to give security for costs.

Frank V. Johnson, for appellant.

George F. Langbien, for respondent.

Beekman, P. J.

We do not agree with the court below that the granting of the order requiring security for costs to1 be given was irregular because not made upon notice. It seems from the opinion that the General Term considered the case as coming within section 3271 of the Code of Civil Procedure, which in certain cases makes it discretionary with the court whether or not such security shall be required. In the cases there provided for, it is true that the order can be granted only upon notice; but the order in question was made, and properly so; under section 3268 of the Code, which provides that security for costs may be required by the defendant where the plaintiff is (subdivision 5) “an infant whose guardian *ad, litem*has toot given such security.”

In such a case it is well settled that, if the motion therefor be seasonably made, the granting of ¡ ’the order is mandatory, does not rest in discretion and may be made *ex parte.*Wood v. Blodgett, 49 Hun, 64; Churchman v. Merritt, 50 id. 270. If, therefore, the order of affirmance had recited the fact that it was made on the ground that the 'order in question was irregular because not made upon notice, we should have felt constrained to reverse it, but it fails to do so; and as it is well settled that we cannot *332look into the opinion below for the purpose of finding, grounds for reversal, it follows that the order appealed from must be sustained'if any ground for its support is discoverable from the papers upon which it was made.

It does appear from the ■ affidavit' of the attorney for the respondent that at the time the order requiring security to. he given was made the guardian, had filed the requisite undertaking, although the attorney for the appellant was not aware of the fact. Under these circumstances, by the terms of the section of the Code above referred to, the appellant Was not entitled to such an order, and we must assume that the court below affirmed the order vacating it on that ground. *It*follows that the order appealed from must he affirmed, with costs.

Gildersleeve and Giegerich, JJ., concur.

Order affirmed, with costs.