Ferroni v. Holbrook, Cabot & Daly Contracting Co.

Before beginning this action, the infant, by his guardian, filed an undertaking, approved by a justice, as security for costs, but intimated nothing of it to the defendant’s attorney, who, under section 3268, Code Civ. Proc., procured an order requiring security, and so learned of the security filed. Later it was agreed, in a stipulation reciting, "The plaintiff herein having complied in every respect with section 3268 of the Code of Civil Procedure,” that an order might be entered vacating the defendant’s order requiring security. Nothing further was subscribed by the attorneys. How it came about, and where lies the truth in the conflicting affidavits, are not of moment; but the plaintiff did serve a notice of the filing of the undertaking, and within 10 days after that there was served upon his attorney a notice of exception to the surety, as the defendant was entitled to do, under section 3274. The surety did not appear to justify. The defendant moved again for security, which motion was opposed and denied upon an affidavit recounting certain alleged conversations and understandings, but nothing foregoing the defendant’s *83right to search, by an inquisition of its own, the sufficiency of the surety offered, and further setting out the stipulation, with its above-quoted recital admitting compliance with section 3268, but containing nothing respecting the other sections of the title of the Code as to security for costs. The motion should have been granted.

The order denying the motion, and here appealed from, is reversed, with costs and disbursements to the defendant to abide the, event, and the motion granted. • All concur.