Opinion
May 21, 1970
Appeal from the Monroe Special Term.
Present — Goldman, P.J., Marsh, Witmer, Moule and Henry, JJ.
Order unanimously modified in accordance with the Memorandum herein, and as so modified affirmed, with costs to respondent. Memorandum: Defendant appeals from an order of Monroe Special Term which directed him to pay counsel fees to plaintiff's attorney and to give security for costs. The order for payment of counsel fees to plaintiff's attorney was properly made ( Zerille v. Zerille, 46 Misc.2d 806), but the order should be modified by deleting therefrom the provisions requiring defendant to give security for costs. In our opinion the provisions of CPLR 8501 requiring nonresident plaintiffs to give such security do not apply to a nonresident defendant who has interposed a counterclaim. ( Turmelle v. Jefferson, 166 Misc. 70.) The order should be modified by deleting the first, third, and fourth ordering paragraphs thereof.