MURRAY a. HENDRICKSON

MURRAY a. HENDRICKSON. New York Superior Court; Special Term, December, 1857. Trustee.—Pleading in Action by.—Liability for Costs. A trustee must sue as such to avoid personal liability for costs. Where he sues as in his own right and is defeated, an order of the court under . section 317 of the Code is unnecessary to charge him personally with costs. Motion to set aside judgment for costs, and execution thereon, as irregular. The action was on a promissory note. The complaint stated the plaintiff to be indorsee and owner of a note ■ for $400, made by defendant, and demanded judgment for the $400 and interest. In November, 1854, judgment was entered against the plaintiff for the defendant for costs. The plaintiff, on affidavit that the note was transferred to him by an assignment of the former holder for the benefit of his creditors, now moved to set aside the judg■ment and execution, on the ground that, being trustee of an express trust, he could not be charged personally with the costs of the action, except for mismanagement or bad faith in the action, to be determined by special order of the court, and that no such order had been made. [MAJORITY — Bosworth, J.] Bosworth, J. As the plaintiff sued in his own right, without alluding in the complaint to his representative character, section 817 of the Code does not apply. To be entitled to the immunities provided by that section; he must come before the court in a character which it protects, and seek to recover in that character. (9 Wend., 486.) Motion denied, with $7 costs.