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DE ROSMO v. FEENEY

DISTRICT COURT, E.D. NEW YORK


April 30, 1941

DE ROSMO et al.
v.
FEENEY et al.

The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is a motion for an order directing the plaintiffs to file a bond in the sum of $250 or to deposit such sum in cash with the clerk of this court as security for costs.

Defendants contend that the New York law, Section 1522 of the Civil Practice Act of the State of New York, requiring security for costs in binding upon this court. Section 1522 of the Civil Practice Act of the State of New York provides that the granting of an order for security for costs is mandatory and not discretionary.

 Since the adoption of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the Conformity Act, section 724 of Title 28 United States Code Annotated, is no longer effective, therefore the New York State rule as to costs is nowise binding upon this court.

 This court has adopted local Civil Rule 45, which provides: "Whenever a procedural question arises which is not covered by the provisions of any statute of the United States, or of the Federal Rules of Civil Procedure, or of these rules, it shall be determined, if possible, by the parallels or analogies furnished by such statutes and rules. If, however, no such parallels or analogies exist, then the procedure heretofore prevailing in courts of equity of the United States, or in default thereof the procedure which shall then prevail in the Supreme Court of the State of New York shall be applied."

 This court will therefore apply the State rule which provides for security for costs. Motion granted.

 Settle order on notice.

19410430

© 1992-2004 VersusLaw Inc.



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