Smith v. Woodruff — 6 Abb. Pr. 65

Majority

p. 65

SMITH a. WOODRUFF.

New York Common Pleas; Special Term,

February, 1858.

Headnote

Receives.—Unauthorized suit by.—Liability foe Costs.

A receiver should apply to the court for leave to sue as such.

If he neglects to do so, and judgment is recovered against him, he ought not, as a general rule, to be exempted from personal liability, for costs.

Motion by plaintiff to be relieved from personal liability for costs.

This action was brought by William B. Smith, a receiver appointed in certain supplementary proceedings, against Samuel B, Woodruff. The plaintiff brought the action as such receiver, but brought it without leave of the court. Judgment having been entered against him with costs, he now moved to vacate as much of it as charged him with any personal liability for the payment of them, and also to set aside the execution issued to collect them.

S. T. Freeman, for the motion.

D. T. Walden, opposed.

Although a receiver appointed upon a proceeding supplementary to execution has general power and authority to sue for debts or demands belonging to the judgment debtor, yet when this power is exercised without the express authority, or sanction of the court, as a general rule, he ought not to be shielded from the payment of the costs which he may incur on his own behalf, or may put the opposing party to, in prosecuting an illegal claim.

In all cases where he desires to prosecute or defend an action

p. 66

in his official character, without personal liability in the event of failure, he should first apply to the court for leave.

Any other rule would enable him to bring needless and vexatious suits, and on failing to recover, not only charge the estate he represents with useless expenses, but impose the troubles and burdens of litigation upon others, while he would entirely escape responsibility.

This action having been brought without leave of the court, the plaintiff prosecuted it at his peril, and should be left to the consequences of his own acts. (Phelps v. Cole, 3 Code R., 157; Supreme Court Rules, 77.)

Motion denied, with costs.