Eli S. Schreier, as Trustee of the Estate in Bankruptcy of George. B. Christman, Jr., Respondent, v. William F. Hogan, Appellant, Impleaded with Joseph Hogan and Others

Eli S. Schreier, as Trustee of the Estate in Bankruptcy of George. B. Christman, Jr., Respondent, v. William F. Hogan, Appellant, Impleaded with Joseph Hogan and Others. Security for costs—section 3268 of the Code of Civil Procedure does'.not apply to an action by a trustee in bankruptcy to set aside transfers fy'the bankrupt. Section 3268 of the Code'of Civil Procedure, authorizing the defendant to require • security for costs, if .the plaintiff is “the official assignee or official trustee of a debtor, or an assignee in bankruptcy, where the action is brought upon a cause of action arising before the assignment, the appointment of the trustee or the adjudication in bankruptcy," does not apply to an action brought by a , trustee in bankruptcy to set aside transfers made by the bankrupt. Appeal by the defendant, William F. Hogan, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day of January, 1902, vacating an order theretofore entered in the action requiring the plaintiff to give security for costs. Section 3268 of the Code of Civil Procedure, which is referred to in the-opinion, provides as follows: “ The defendant in an action brought in a court of record, may require security for 'costs to be given as prescribed in this title, where the plaintiff was when the action was' commenced * * * the official assignee or official trustee of a debtor; or an assignee in bankruptcy, where the action is brought upon a cause of action arising before the assignment, the appointment of the trustee or the adjudication in bankruptcy.” George F. Hickey, for the appellant. Herman H. Oppenheimer, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: - The order requiring security for costs was properly vacated. Section 3268 of the Code of Civil Procedure does not apply to an action by a trustee in bankruptcy to set aside transfers made by the bankrupt. This precise question was determined by this court in Rielly v. Rosenberg (57 App. Div. 408), and, therefore, upon that authority, the order here appealed from must be affirmed, with ten dollars costs and disbursements. Present — Van Brunt, P. J., Ingraham, McLaughlin, Hatch and Laughlin, JJ. Order affirmed, with ten dollars costs and disbursements.