In the Matter of the Lien of R. H. Dowling v. Premises Owned by Charles P. Bucking

In the Matter of the Lien of R. H. Dowling v. Premises Owned by Charles P. Bucking. (Argued April 8, 1873; decided May 6, 1873.) Since the Code (§ 321) an assignee of a cause of action assigned after suit brought is liable for the costs therein, irrespective of the question as to whether or not he, subsequent to the assignment, took any substantial part in the prosecution of the action. An assignee, however, to whom a claim is assigned, simply as collateral security, is not liable. These were proceedings to enforce a mechanic’s lien which was determined in favor of defendant. The appeal is from an order of the General Term of the New York Common Pleas affirming an.order denying a motion on the part of defendant Bucking, that Messrs. Hills & Wakeman, alleged assignees and owners of the demand in controversy, pay the costs of the successful defence. After the commencement of the proceedings, the claimant assigned his claim to Hills & Wakeman, creditors, to collect, and apply proceeds in payment of the debt, due them, paying over the surplus, if any, to the assignor. The prominent question discussed was as to whether the assignees, after the assignment, conducted or carried on the suit or aided therein. Held, that they had not; but that, under section 321 of the Code, this did not affect their liability; that they were not liable, however, as the assignment was simply .as collateral security, on authority of Wolcott v. Holcomb (31 H. Y., 125). Aug. F. Smith for Bucking, appellant. Abram Wakeman for Hills & Wakeman, respondents. [MAJORITY — Peokham, J.,] Peokham, J., reads for affirmance. All concur. Order affirmed.