Ryan v. Potter. Long, 19 Hun, 303; Hall v. rows v. Norton, 2 Hun, 550. Sawyer, 47 Barb. 116; Bur- decided under the Code of Procedure. The motion is denied. RYAN, ADMINISTRATOR, &c., v. POTTER. N. Y. SUPERIOR COURT, SPECIAL TERM, JUNE, 1882. §§ 3268, 3271. Security for costs, — When right to require absolute. When discretionary.· Mere indigency of estate is not sufficient reason for requiring administrator to give. In a case within section 3268 of the Code, the defendant has an absolute right to require the plaintiff to give security for costs, unless such right has been lost by the laches of the defendant. But in a case within section 3271, to require such security is discretionary with the court. In an action brought and prosecuted in good faith by an administrator, the court should not require him to give security for costs, simply because he is the administrator of an estate which has no funds except the claim in litigation. Motion to require the plaintiff to give security for costs. The action was brought by the plaintiff, as the administrator of one Ryan, to recover the sum of $5,000 damages for the death of the said Ryan, alleged to have been caused by the negligence of the defendant in the construction, management and care of a certain building in the city of New York, which was destroyed by fire on January 31, 1882, when the plaintiff's intestate, who was on the premises, lost her life. The moving affidavit set forth that the plaintiff had admitted to the defendant, that the decedent left no property, real or personal, and that there was no prop Ryan v. Potter. erty or fund belonging to the estate wherewith to pay the costs of the action should the plaintiff be defeated; and that the plaintiff personally possessed no property whatsoever; but there was no charge that the action was being prosecuted in bad faith. In opposition to the motion, it was urged that the fact of the plaintiff's personal impecuniosity could have no bearing upon the decision of the motion-his pecuniary responsibility being in question, solely in connection with his management of the estate, until he was charged with mismanagement, or bad faith in the prosecution of the action; that the indigency of the estate of a decedent was not one of the cases in which the statute prescribed that security could be demanded as of right. Townsend, Dyett & Einstein, for motion. Chas A. Hess, opposed. TRUAX, J. — In a case within section 3268 of the Code of Civil Procedure, the defendant has an absolute right to require the plaintiff to give security for costs, unless such right has been lost by the defendant's laches; but under section 3271, the court may, in its discretion, require the plaintiff to give such security. If an action. is brought and prosecuted in good faith by an administrator, the court should not require him to file security for costs, simply because he is the administrator of an estate that has no funds except the claim in litigation. (See Healy v. Twenty-third Street R. R. Co., 1 N. Y. Civ. Pro. R. 15, and cases there cited). Motion denied, with $10 costs to abide the event. Schultz v. Schultz. SCHULTZ, RESPONDENT, . SCHULTZ, APPEllant. SUPREME COURT, FIRST DEPARTMENT; GENERAL TERM, JANUARY, 1882. S$ 450, 549. Action by wife against husband. battery. Can be maintained for assault and Order of arrest may be granted in such action. Under section 7 of chapter 90 of the Laws of 1860, amended by chapter 172 of the Laws of 1862, a wife can maintain an action for assault and battery against her husband*; and an order of arrest for "personal injury," may be granted under subdivision 2 of section 549 of the Code. Freethy v. Freethy (42 Barb. 641), Longendyke v. Longendyke (44 Barb. 366), and Perkins v. Perkins (62 Barb. 531), criticised. (DAVIS, P.-J., dissenting.) (Decided April 10, 1882.) Appeal by defendant from an order of the special term, denying a motion to vacate an order of arrest. The action was brought by Theresa Schultz, the wife of Theodore Schultz, against the said Theodore Schultz, to recover the sum of $10,000 damages for an assault and battery alleged to have been committed by him upon the person of the plaintiff. An order of arrest was granted by a judge of the court, under subdivision 2 of section 549, and accompanied the summons. From the affidavits upon which the order was granted, it did not clearly appear whether the action was for a limited divorce or for damages for a personal injury; but the cause of action set forth by the complaint, served subsequent to the defendant's motion to vacate the order, was for assault and battery, and the objection that the papers upon which the * A husband has no right to beat his wife nor to inflict corporeal punishment upon her, People v. Winters, 2 Park. Crim. R. 10. Schultz v. Schultz. order had been granted did not sufficiently disclose the nature of the cause of action, and were inconsistent with themselves, upon which theory the appeal was partly prosecuted, seems to have been disposed of in the first paragraph of the prevailing opinion. Benno Loewy (Jacob Abarbanell, attorney), for appellant: If the action be treated as one for a limited divorce, the defendant could be arrested only under subdivision 4 of section 550 of the Code, and the order of arrest should have been granted by the court (Goldsmith v. Goldsmith, 1 Law B. 75). The case of Jamieson v. Jamieson (11 Hun, 38), does not apply under the present Code. No action to recover damages for a personal injury can be maintained by a wife against her husband, Longendyke v. Longendyke, 44 Barb. 367; Freethy v. Freethy, 42 Barb. 643; Perkins v. Perkins, 62 Barb. 531; Berdell v. Parkhurst, 19 Hun, 538; opinion of BARNARD, P. J., at page 360. By section 557, it must appear "that a sufficient cause of action exists" in order to uphold the arrest; and, if this action be one to recover damages for a personal injury, it cannot be maintained by the wife, and the order appealed from should be reversed. L. Asbacher, for respondent. By the Court. - BRADY, J.-This is an action for assault and battery; the parties are husband and wife. There is no doubt that the papers presented upon the motion contain a sufficient statement of the cause of action, and the question is, therefore, whether the defendant, being the husband of the plaintiff, can be arrested and held to bail in such an action as this. Schultz v. Schultz. The Code ($549, subd. 2), authorizes the commencement of an action to recover damages for a personal injury, and the granting of an order of arrest therein generally, containing no provision as to the suitor who asks for the remedy. It presents nothing, therefore, upon the question suggested. There is nothing, either, contained in the acts of 1848 and 1849 in relation to married women (see Laws of those years) bearing upon the subject here to be discussed. In 1860, however, an act [Chap. 90] was passed by the legislature (see Laws of that year, p. 157), which seems to be an independent act, having no relation whatever to the acts of 1848 and 1849. It was provided by section 7 as follows: "And any married woman may bring and maintain an action in her own name, for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole." That section was amended by an act passed in 1862 (see Laws of that year, Chap. 172), but not in respect to the provision relating to her right to bring an action, as provided by the act of 1860. These acts in express terms, therefore, conferred the right, and they were acts that treated of the property and rights of a married woman as if feme sole, and unmarried, to maintain an action against any person for any injury to her person or character. And it was declared in both acts, that the money received upon the settlement of any such action should be her sole and separate property. There are some adjudications which are supposed to have interpreted the intention of the legislature, in regard to, and the effect of, the provision referred to in the statutes of 1860 and 1862, which are not in harmony. In the case of Freethy o. Freethy (reported in 42 Barb. 611), it was decided, that a wife could not main |