WHEELER a. WRIGHT

WHEELER a. WRIGHT. Supreme Court, Seventh District; Special Term, May, 1862. Costs.—Liability of Paety in Inteeest foe Costs eecovebedagainst Nominal Paety. Under 2 Bev. Stat., 619, § 44, which provides that the costs of an action brought in the name of another, by an assignee or person beneficially interested in the . recovery, shall be charged upon the party in interest—applies only to cases where the assignee or party in interest is chargeable with having brought the action. A receiver appointed in supplementary proceedings brought an action by order of the court, without the interference or direction of the judgment-creditor, and costs were awarded to the defendants. Held, that the judgment-creditor was not chargeable with such costs, on the •ground that he was beneficially interested in the recovery. Motion to compel one Eben Wheeler to pay the costs awarded to 'defendants. This action was brought by John R. Wheeler, receiver, against Mehemiah Wright and William G. Wright, to set aside a conveyance of real property. Eben Wheeler had recovered a judgment against Mehemiah Wright, upon which an execution had been issued to the proper county, and returned unsatisfied, and an order for examination in supplementary proceedings made by a justice of this court, and the judgment-debtor examined. In the course of the examination, the debtor disclosed the conveyance of certain real estate to his son, William G. Wright, one of the defendants in this action. After-wards, an order was duly made appointing the plaintiff herein receiver-of such judgment-debtor, and directing him to bring an action to set aside the conveyance, and to compel an accounting by William G. Wright of the proceeds and receipts of such real estate in his hands. This action was brought, in pursuance of such order, by the receiver. The judgment-creditor neither engaged the attorney, nor directed the commencement of the action, nor interfered with the action during its progress. The plaintiff was unsuccessful in the action, and judgment entered for the costs of defendants. An execution issued thereon against the receiver, and returned unsatisfied; and there were no assets in the receiver’s hands applicable to the payment of such costs. The defendants now moved to compel the judgment-creditor, Eben Wheeler, to pay these costs, on the ground that he was the party beneficially interested in the action. J. B. Finch,, for the motion. I. Eben Wheeler is the only person “ beneficially interested” in bringing this action. Under 2 Rev. Stat., 619, § 44, any person beneficially interested is liable. (1 Hill, 629 ; 20 Wend., 630 ; Bliss a. Otis, 1 Den., 656.) The statute makes not only the simple assignee liable (Norton a. Rich, 20 Johns., 475 ; Schoolcraft a. Lathrop, 5 Cow., 17), but “ any person beneficially interested” in the recovery in such action. These terms extend to every person who holds an interest, by way of mortgage or lien, in the chose in action. (1 Hill, 632-3.) A person may be so liable, in consequence of being beneficially interested as a cestui que trust, without being either a partial or total assignee. (Colvard a. Oliver, 7 Wend., 497.) The clause takes in every such vested interest as the courts of law will protect against the interference of the nominal party. (1 Hill, 632-3; Norton a. Rich, 20 Johns., 475; Jordan a. Sherwood, 10 Wend., 622; Martin a. Hawks, 15 Johns., 405 ; Schoolcraft a. Lathrop, 5 Cow., 17.) II. Process in the nature of a fieri facias against personal property, may be issued for the collection of such costs, founded on such order of court. (Laws of 1847, ch. 390, § 3.) The remedy to compel Eben Wheeler to pay the costs is by motion for an order. (Giles a. Halbert, 12 N. Y., 32 ; laws of 1847, ch. 390, § 3.) George M. Osgoodby, opposed. I. 1. The effect and meaning of the section of the statute under which this application is made, depends wholly upon the question, whether the person “ beneficially interested” in the recovery brought the action, as the statute only applies to cases where the action was brought by or under the direction of the person whom it is attempted to charge with the costs of the defence. (2 Rev. Stat., 821, § 9 ; Giles a. Halbert, 12 N. Y, 32 ; McHench a. McHench, 7 Hill, 204; Whitney a. Cooper, 1 Ib., 629 ; Miller a. Franklin, 20 Wend., 630 ; Bliss a. Otis, 1 Den., 656 ; Colvard a. Oliver, 7 Wend., 497; Miller a. Adsit, 18 Ib., 672; Bendernagle a. Cocks, 19 Ib., 151.) In McHench a. McHench (supra), the action was commenced by the receiver, by and trader the direction of the judgment-creditor, and the motion was granted for that reason only. 2. Eben Wheeler did not bring or prosecute this action, and although he may have been “ beneficially interested” in the recovery, it is a perversion of the statute to make the question of hip liability for the costs depend upon his beneficial interest, when he was not instrumental in having the action brought, and in fact did not know of its being brought until after its commencement. II. Under the statute, an assignee or person beneficially interested is liable for costs only in the same cases, and to the same extent, in which a plaintiff would be liable. Row, this action being brought by the plaintiff as a receiver; under the order of the court, Eben Wheeler cannot, even if it is held he is liable, be compelled to pay the costs, except out of the assets of the judgment-debtor. III. The many cases that have arisen under this statute to compel an assignee to pay costs of defence, have no bearing upon this motion. The various facts and circumstances shown by the papers and proceedings in this action, are conclusive to show that it was brought and conducted in good faith. [MAJORITY — Johnson, J.] Johnson, J. If this motion can be granted, it must be upon the ground that Eben Wheeler, the judgment-creditor, was beneficially interested in the recovery in the action. It must be conceded that had the plaintiff succeeded in the action, the recovery would have been for the exclusive benefit of the judgment-creditor. But this is not enough to charge a person not a party with the costs of the action. The statute (2 Rev. Stat., 619, § 44 ; 5 ed., 3 Ib., 909, § 10) relates only to actions “ brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action.” Ro matter to what extent the person sought to be charged, who is not a party, may be interested in the recovery, if in truth he is not chargeable with having brought the action, he is not chargeable with costs. (Giles a. Halbert, 12 N. Y., 32 ; Whitney a. Cooper, 1 Hill, 629 ; Miller a. Adsit, 18 Wend., 672.) This is the only test, as shown by all these cases. Indeed, the language of the statute is too plain and explicit to admit of any other construction. This, of course, has no reference to the class of cases provided for by section 321 of the Code, where the cause of action is assigned after the action is commenced. The motion must therefore be denied, with costs.