#### John Podmore, Administrator, Etc., of Annie Podmore, Deceased, Appellant, *v.*The Seamen’s Bank for Savings, Respondent.

(City Court of New York, General Term,

April, 1899.)

City Court of New York — Security for costs from non-resident administrator.

An administrator, not residing in the county of New York, who brings an action in its City Court may be required to give security for costs, although the matter in suit, a deposit in a city savings Dank, is located in the city of New York and he has been appointed administrator by the Surrogate’s Court of that county. .

Appeal from an order of Special Term- requiring plaintiff to file security for costs.

Hymes, Woytisek & Schaap (Michael Schaap, of counsel), for appellant.

Strong *&*Cádwalader (Henry S. Wardner, of counsel), for respondent.

Conlan, J.

This is an appeal from an order of the Special Term requiring the plaintiff as a nonresident to file security for costs.

The plaintiff sues as administrator, and because of the single circumstance that the *corpus*of the estate is situated in the city of New York, namely, a sum alleged to be on deposit with the defendant, and that letters of administration were issued to him by the surrogate of the county of New York, he claims that the *318rule requiring Mm to file security for costs, "because personally he is a nonresident, does not apply. ;

. This will depend upon the construction to be put upon the section ■ of the Code of Civil Procedure requiring security. We think section 3246 of the Code is not in question here, as by it costs are only awarded in favor-of or against a person suing in a representative capacity. .

• Under, section 3271 the court may, in its discretion, require the plaintiff to give security for costs, and under section 3268 the defendant may, in actions brought in.a court of record, require security for costs to be given as prescribed in this title (chap. 21, art. 2, tit. 3), where the ■ plaintiff was, when the action was commenced, either a nonresident..of the state, or, if the action be brought in a County Court or -in the City Court of the City of New York, is residing without the city or county wherein the court is located. § '3268, subd. 1.

Now, it appears that the plaintiff is a resident of Flushing in the county of Queens, and is not, therefore, a resident of the county of New York. We are not cited specifically to any authority that, because of his being an administrator by appointment of the surrogate of the county of New York, his residence is changed from Queens to New York county, nór does it follow merely because the estate to be administered is bodily within the latter county.

It has been sáid in Hall v. Waterbury, 5 Abb. N. C. 356, and in McDougal v. Gray, 15 Civ. Pro. 231,. that -although. he . is a nonresident and sues in a representative Capacity, his nonresidence affords no reason for requiring, security for costs;' but in Tracy v. Dolan, 31 App. Div. 24, upon a motion for additional security, where the plaintiff’s cause of action had been revived by his two executors, both of whom were nonresidents, such non-residence was mentioned as an incident to be considered.in reaching a conclusion, and the court held that the executors must give the additional security.

We are in accord with the opinion of the justices of the Supreme Court, and think the order appealed from should be af- " firmed.

■McC aethy, J., concurs.

• Order affirmed. - ¡