#### RUTHERFORD v. TOWN OF MADRID.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Security for Costs—Action for Death by Wrongful Act.

It is error to base an order requiring plaintiff in an action for death by wrongful act to give security for costs solely on the ground that plaintiff was personally irresponsible, and the estate was insolvent, but the merits of the cause of action should be considered as on an application for leave to sue in forma pauperis.

Appeal from special term, St. Lawrence county.

Action by Annie Rutherford, as administratrix of James Rutherford, deceased, against the town of Madrid, to recover damages for alleged negligence of defendant in causing the death of plaintiff’s intestate. From an order requiring plaintiff to give security for costs (26 N. Y. Supp. 573), plaintiff appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Louis Hasbrouck, for appellant.

F. J. Merriman (C. A. Kellogg, of counsel), for respondent.

*924HERRICK, J.

. This is an appeal from an order of the special term requiring the plaintiff to give security for costs. The action is one brought by the plaintiff, as administratrix of her deceased husband, against the town, for negligence causing the death of the intestate. The order is made under section 3271 of the Code of Civil Procedure. It is a discretionary order, and excepting where it has been irregularly obtained, or there has been an abuse of discretion, or where the discretion has been exercised in pursuance of erroneous principles or theories of law, that discretion will not be reviewed upon appeal. With great respect for the very able and learned court which made the order, it seems to me that it was granted in pursuance of an erroneous theory and construction of the section of the Code referred to. In arriving at its determination, it expressly refused to take into consideration, in any degree, the merits of the plaintiff’s cause of action, and to base the order upon th£ s°le and only ground that the plaintiff was personally irresponsible, and the estate was insolvent. If this be the correct principle to apply in determining applications of this kind, it is obvious that in actions like this, brought for the death of the intestate by the negligence or wrongdoing of the defendant, it would, in a very considerable number of cases, put an end to litigation without a hearing upon the merits. A family whose only means of support has been the earnings of its head, and whose only asset is the cause of action which the law gives for the negligent and wrongful taking of the life of the head of the family, would be deprived of the means of prosecuting the right which the law gives. Provision is made, under our laws, whereby a poor person having a cause of action in his own right may, upon application to the courts, be permitted to prosecute such action without liability or giving security for costs. But there is no such affirmative provision in our statutes as permits the court to grant the like immunity to persons, like the plaintiff, suing in a representative capacity, and it seems to me that a humane and rational principle upon which to exercise the discretion vested in the court, under section 3271, in cases like this, is to adopt practically the same principles upon which courts permit persons to bring suits in their own right as poor persons; that is, if the court is satisfied that the action is brought in good faith, that it is not malicious or vexatious, and that the plaintiff has a prima facie case upon the merits, then the plaintiff should not be required to file security for costs. It seems to me that in this case the special term did not, in fact, exercise its discretion. The theory upon which it proceeded, if correct, entitles the defendant, as a matter of right, to have a plaintiff suing in a representative capacity file security for costs in all cases where he is personally irresponsible, and the estate has no appreciable assets except the cause of action which he seeks to prosecute, no matter how good that cause of action may be. A construction which, without any consideration of the merits of his case, excludes a suitor from the courts of justice because he is poor and without friends to become his security, cannot be sustained. The order appealed from should be reversed, and the proceedings remitted, to be heard at special term, that its discretion may be *925exercised upon the merits in consonance with the views herein expressed, with $10 costs, and printing and other disbursements of this appeal, to the appellant. All concur.