Alger v. Conger , 24 N.Y. Sup. Ct. 45 ( 1879 )

Learned, P. J.:

Joseph C. Alger and William C. Stanton, describing themselves as trustees, etc., presented a written claim to the defendants, administrator and administratrix, stating the claim to be held by them in their right as trustees. The parties agreed to refer under the statute, and a reference was had. The answer of the defendants is entitled in the name of said Alger and Stanton, trustees, against said Conger and Algers, administrators, etc. The report of the referee states that the plaintiffs were duly appointed trustees, 'and finds against them. On the usual notice the report was confirmed with costs,, and the defendants were granted judgment against the plaintiff, Joseph C. Alger, as survivor. Thereupon a judgment was entered. In the title of the referee’s report, and hi all the subsequent proceedings, the names of the plaintiffs are given without the addition of the word, trustees. There was no order that the plaintiff should pay costs personally. Before the entering of the judgment, the plaintiff’s attorneys notified the defendants that they objected to the entry of any personal judgment or execution against the plaintiff. But an execution was issued against the plaintiff personally. This the Special Term set aside on motion; giving leave, however, to the defendants to apply for an order charging the plaintiff, personally, or for an order under section 317 of the Old Code.

I think the order of the Special Term was right. We must take the whole judgment-roll together. And then it clearly appears that this was an action prosecuted by the trustee of an express trust. (Old Code, 317.) The claim is stated to be held by the plaintiffs, as trustees. That claim is attached to the agreement to refer and is a part thereof. The referee’s report finds that the plaintiffs were appointed trustees, and that the trustees received and hold the money in question.

Now, in such a case the Code says that costs shall be recovered as in an action by or against a person prosecuting or defending in his own right. But these costs are chargeable only upon, and to be collected of, the estate represented ; unless the court shall, for mismanagement or bad faith, direct them to be paid by the party personally.

And, therefore, although the defendants neglected to add the word “trustees” to the title of their judgment, that neglect did not make the plaintiff personally liable. The judgment could be only against the estate or fund, whatever might be the title, because it was the estate or fund which presented the claim. To hold the plaintiff personally the court must, on due proof, find mismanagement or bad faith. Nothing of this kind was done. Very possibly it was correct practice to enter a judgment in form against the plaintiff; though it would have been more accurate to add the word “trustees.” But whether that word were added or not, the fact appears on the roll that the plaintiffs were acting as trustees of an express trust; and the costs are recovered against the estate or fund.

The order should be affirmed, with ten dollars costs and printing disbursements.