Carnahan v. Pond , 15 Abb. Pr. 194 ( 1862 )

By the Court.^*—Hilton, J.

It appears that soon after this suit was commenced, the plaintiff assigned all his interest in the claim involved in it to the appellants, E. W. Tiers & Co., as collateral security for the payment of an indebtedness to .them. The assignment provided that after the extinguishment of the debt thus intended to be secured, any residue should be paid over to the plaintiff. Thereafter the action seems to have been prosecuted by or on behalf of Tiers & Co.; but for the purposes of this appeal it is quite immaterial whether it was so or not, as the acceptance of the assignment itself made them liable for the costs which have been recovered against the plaintiff. The Code (§ 321) imposes this liability upon the assignee in all such cases; and it makes no difference that the assignment was made by way of mortgage or as security (Whitney a. Cooper, 1 Hill, 629), or upon a trust (Schoolcraft a. Lathrop, 5 Cow., 17), as the liability exists in either instance. Section 31Y of the Code, which exempts trustees of an express trust from personal liability for costs, is only applicable to actions where the plaintiff shows by his complaint that he prosecutes in a representative character, and in that character seeks to recover (Murray a. Hendrickson, 6 Abbotts' Pr., 96); and in such cases it seems that it should also appear that the prosecution was necessarily in a representative capacity. (People a. Judges of Albany Mayor’s Court, 9 Wend., 486.)

It is insisted, however, that in any event the order appealed from must he modified, because the appellants allege in their affidavits used on the motion, that one J. R. Dickerson owns an interest in the claim sued upon; he being actually entitled to receive, instead of the plaintiff, any surplus which might come to their hands, over and above sufficient to pay their debt; and, therefore, the liability for costs must be apportioned between - them and Dickerson. But a conclusive objection to this view is, that Dickerson does not appear to have had any notice of the motion or of an intention to charge him with the costs, and as he has not been brought regularly before the court, we can make no order respecting him.

Order at special term affirmed.

* Presént, Daly, F. J., Hilton and Brady, JJ.