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Nelligan v. Groth

126 A.D. 444 Court Second Department, Decision date 1908-05-01 English

Delivered by Rich, J.:

Contents

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p. 444
L. Aloysius Nelligan, as Receiver in Supplementary Proceedings of the Property of Louisa Schlaitzer, Plaintiff, v. Peter Groth, Appellant. Rudolph Liebmann, Respondent.
Second Department,
May 1, 1908.

Headnote

Costs—person beneficially interested—section 3347, Code of Civil Procedure.
One who is beneficially interested in an action brought by the receiver of an insolvent judgment debtor and for whose .sole benefit the action is prosecuted, is liable for costs when judgment goes against the plaintiff.
The liability for costs of one beneficially interested is absolute and the court has no discretion to relieve him.
Appeal by the defendant, Peter Groth, from an order of the Supreme Court, made at the ■ Kings County Special Term and entered in the office of the cleric of the county of Kings on the 30th day of August, 1907, denying the defendant’s motion that the respondent, as a person beneficially interested in the recovery in this action, be directed to pay costs to the defendant’s attorneys.
Aaron W. Levy, for the appellant.
Albert Van Winkle [Edward C. Lunt with him on the brief], for the respondent.

It appears that the respondent Liehmann recovered a judgment against one Louisa Sohlaitzer, upon which he instituted proceedings supplementary to execution, examined the judgment debtor and procured the appointment of the plaintiff in this action as receiver of her property; that thereafter, at the request of Liebmann, the plaintiff as such receiver brought this action for an alleged conversion by the defendant of the personal property of the judgment debtor, upon the trial of which the defendant had judgment upon all of the issues and for $108.85 costs; execution was issued upon such judgment and returned unsatisfied; the time within which the plaintiff might have appealed has expired, and no appeal has been perfected. The respondent was beneficially interested in the cause

p. 445
of action, which was prosecuted solely for his benefit. The plaintiff is insolvent, and the costs have not been paid. These facts are not controverted, and the appellant was entitled to the relief prayed for. (Code Civ. Proc. § 3247; Ward v. Roy, 69 N. Y. 96 ; Droege v. Baxter, 77 App. Div. 78 ; Slauson v. Watkins, 95 N. Y. 369 .)

We are not impressed with the contention that the order was discretionary and that the learned justice at Special Term exercised this discretion properly. The liability of the person beneficially interested for costs is absolute, and to the same extent as if he was the plaintiff (Code Civ. Proc. § 3247), and the court is without discretion to relieve him of this absolute statutory liability. Although the language of the section is that where costs are awarded against the plaintiff “ the court may, by order, direct the person so liable to pay them,” we think that under the rules of law that where a statute directs the doing of a thing for the sake of justice the word “ may ” means the same thing as the word “ shall ” (People ex rel. Otsego County Bank v. Supervisors of Otsego County, 51 N. Y. 401 ), and that if it is obvious that the Legislature intended to impose a positive duty the language used has an imperative signification and is to be so construed (Livingston v. Tanner, 14 N. Y. 64 ), and the rule declared in Wuesthoff v. Germania Life Ins. Co. (107 id. 580) that “ the intention of the Legislature is the cardinal consideration in the construction of statutes, and whether a particular provision is mandatory or directory is to be determined from the language used and the purpose in view,” the provision of the Code under consideration is mandatory. Absolute liability of the beneficially interested person for costs being created, it becomes the duty of the court to enforce such liability by granting the order intended to accomplish such result.

The order must be reversed, with costs, and the motion granted, with costs.

Woodward, Jerks, Hooker and Gaynor, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.

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