Lyon v. Wilder , 16 N.Y. St. Rep. 875 ( 1888 )

By the Court.—Sedgwick, Ch. J.

In the course of the action the defendant, Muxlow, had applied for an order compelling the plaintiff to file security for the payment of her costs, and an order was made that the plaintiff pay into court the sum of $250 to be applied to the payment of defendant Muxlow’s costs, or that he file an undertaking, etc. The plaintiff commenced to obey the order by filing an undertaking. The sureties preferred not to have the trouble of attending for justification, and one of them furnished $250 in money. This money was deposited with the clerk, who, probably without the knowledge of the defendants or their attorney of the form of the receipt, gave to the attorney for the plaintiff a receipt in this form : “ Received from Charles Forbes per T. F. Sanxay, Attorney, as security for costs for the defendant Jane B. Muxlow, pursuant to an order of this court.”

This in effect was an election of the plaintiff not to file the undertaking, but to obey the order by depositing the money. In my opinion the money became the money of the plaintiff, and the appellant Forbes was the creditor of the plaintiff in the amount deposited. For this reason the appellant was not aggrieved by the order appealed from, as he did not own the money.

Order affirmed with $10 costs.

Freedman, J., concurred.