The opinion
Giegerich, J.
In view of the affidavits filed in support of the plaintiff’s proceedings in the Surrogate’s Court, I am inclined to believe that the action is prosecuted with a reasonable prospect of success; and that a substantial issue exists as to the validity of the payment made by defendant in recognition of the claim of a gift causa mortis. It appears that the plaintiff has brought the action in good faith, and, under the authorities, the fact that the estate is without assets is not alone sufficient to call for an order for security for costs. Rutherford v. Town of Madrid, 77 Hun, 545 ; Hale v. Mason, 86 id. 499; Brown v. Dean, 83 id. 613; Fagan v. Strong, 19 Civ. Pro. 88; 7 N. Y. Supp. 919 ; Sullivan v. McManus, N. Y. Law Jour., Nov. 1, 1894; Ridgway v. Symons, 14 Misc. Rep. 78 ; Cahn v. Sugenheimer, N. Y. Law Jour., April 4, 1899. For these reasons, the motion to compel the administrator to give security for costs is denied.
Motion denied.