Merrick G. Reade et al., Appellants, v. Euclid Waterhouse et al., Respondents

Merrick G. Reade et al., Appellants, v. Euclid Waterhouse et al., Respondents. (Argued April 1, 1873; decided May 6, 1873.) The remedy by attachment, given by section 321 of the Code against an assignee pendente lite to enforce the payment of costs for which he is made liable by that section, was intended only to apply as against assignees taking and holding in their own right. If such assignee holds in a representative capacity, specified in section 317, in the absence of misconduct or bad faith, he is protected from personal liability by that section, and section 321 imposes no greater liability upon him than if the action had been originally brought by him in such representative capacity. An assignee in bankruptcy is a trustee of an express trust within the meaning of section 317, and the fact that the trust fund is under the jurisdiction of another tribunal than that in which the action is prosecuted, does not affect his liability for costs. ; It seems that, under section 321, an assignee is not personally chargeable ■ with costs accruing before the assignment. Appeal from order of the General Term of the Superior Court of the city of ]STew York, affirming an order of Special Term directing Albert Smith, assignee in bankruptcy of the plaintiffs, to pay to defendants or their attorneys the costs of the action, and, in default of such payment, that an attachment issue against said Smith. This action was brought upon a promissory note, and defendants set up a counter-claim. After the commencement of the action, plaintiffs were adjudged bankrupts, and Albert Smith was appointed assignee of their estate. He continued the action in the name of the original plaintiffs. On the trial the jury found a verdict for the defendants, upon which a judgment was entered in their favor, among other things, for $794.98 costs and extra allowance, which sum, by the order, Smith was directed to pay. J. T. Williams for the appellants. The judgment recovered by defendants would be provable against plaintiffs’ estate in bankruptcy. (In re Crawford, 3 Barb., 171; In re Vickery, id., 171; In re Brown, id., 145.) The assignee is the trustee of an express trust, within the meaning of section 317 of the Code. (Cunningham v. McGregor, 5 Duer, 648; 12 How. Pr., 305.; Conger v. H. R. R. R. Co., 7 Abb. Pr., 255; St. John v. Denison, 9 How. Pr., 343; 5 Cow., 14; 4 id., 548; 3 J. R., 249.) Even had the action sounded in tort, this order could not stand, no execution against the property having been returned unsatisfied. (Farmers' L. and T. Co. v. Kurch, 1 Seld., 558.) Repeals of statutes by implications are never allowed, except where inconsistency and repugnancy are plain and unavoidable. (McCartee v. Orphan Asylum Soc., 9 Cow., 437; id., 506; 9 Barb., 268, 302; 2 id., 216 ;4 E. D. S., 258; Bowen v. Lease, 5 Hill, 221; 1 id., 271-6; 3 How., 441.) Jno. E. Parsons for the respondents. The cause of action by assignment after suit brought became the property of the assignee, and he is liable for costs. (Columbian Ins. Co. v. Stevens, 37 N. Y., 536; Code, § 321; Camp v. Rec'rs of Niagara Bk., 2 Paige, 283.) Payment of costs could be enforced against the assignee by attachment. (Code, § 121; R. S., 126, 5th ed.) A claim for costs against an assignee in bankruptcy is not provable. (In re Crawford, 3 Barb., 171.) The assignee was guilty of bad faith, and is personally liable for the costs. (Code, § 317; Cumming v. Edgerton, 9 Bosw., 684.) [MAJORITY — Rapadlo, J.] Rapadlo, J. Section 321 of the Code makes an assignee pendente Ute liable for costs as if he were a party, excepting only that payment can be enforced against him by attachment, which could not be done were he a party to the record. It seems to me, however, that this remedy was intended to apply only to assignees taking and holding in their own right, and that, if holding in a representative capacity, section 317 protects them from personal liability in the absence of misconduct or bad faith. Section 321 imposes no greater liability upon an assignee of the description mentioned in section 317, when he becomes such, pending the action, and .continues it in the name of the original party, than if the action had been originally brought by him in his representative or official capacity. The assignee in bankruptcy clearly comes within the description of trustee of an express trust, and of a person expressly authorized by statute to sue, contained in the 317th section, and the provision is express that the costs shall in such case be chargeable only upon the fund, etc., unless personally charged on the trustee for mismanagement or bad faith. It protects the defendant by authorizing security for costs to be required. The fact that the trust fund is under the jurisdiction of another tribunal does not seem to me sufficient to overcome the express provisions of section 317. I am unable to find anything in the language of the section which can justify us in confining its operation to cases in which the trust fund is under the control of the court in which the trustee prosecutes his action. Furthermore, although section ' 321 is silent upon the subject, it does not seem reasonable that the assignee should be personally charged with costs accrued before the assignment. The original order was not made upon the ground of mismanagement or bad faith, and, unless the liability is absolute without that, it cannot be sustained. The order should be reversed. All concur, except Grover and Folger, JJ., not voting. Order of General Term and of Special Term reversed and motion denied, with costs.