Ryers v. Hedges — 1 Hill & Den. 646

Majority

p. 646

Ryers and others vs. Hedges.

Headnote

Whether a landlord, defending an ejectment in the name of his tenant, will be liable for the costs recovered by the plaintiff, quere.

Where the alleged landlord, on a motion to compel him to pay the plaintiffs’ costs, admitted that he claimed title to the premises, and had aided in the defence, but showed by his own and other affidavits that he aided merely as counsel, the court denied the motion.

As a general rule, though one person, for the protection of his own interest, defend an action in the name of another, he will not be liable for the plaintiff’s costs.

Where a motion was opposed on an affidavit made by one who had refused to testify for the moving party, the court denied the latter a commission to compel the witness to be examined pursuant to 2 R. S. 457, 8, §§ 24, 25, 2d ed., on the ground that the affidavit was full to the merits of the motion, and showed that a further examination would be useless.

And, semble, a commission will be denied under such circumstances, if the adverse party produces the witness’ affidavit touching the matters in question ; for it will be presumed that he has told the whole truth, till the contrary appear.

H. Welles, for the plaintiffs in ejectment,

moved for a rule that one Bogert pay the plaintiffs’ costs of prosecuting this cause to judgment, on the ground that the defendant ■had been before and during the pendency of the suit, the tenant of Bogert; and that the latter had defended the suit in his name.

In addition to affidavits tending to show the existence of the tenancy, it appeared that the defendant had been committed under a ca, sa. for not paying the costs; and, while in prison, had admitted the tenancy, and that Bogert had defended the cause through him, claiming title; but had refused to make any affidavit in order to aid this application..

M. T. Reynolds, contra,

read affidavits, and, among others, the affidavit of Hedges and Bogert, denying the tenancy and affirming that Bogert, though he had claimed title and 'aided in the defence, had not done the latter in any other capacity than as counsel for Hedges. Hedges

p. 647

had been discharged, from imprisonment under the insolvent act,

Welles insisted, that the affidavits on the part of the defendant did not explicitly meet the allegations in the plaintiffs’ affidavits ; that the motion should, therefore, be granted; or at least, this court should order Hedges’ examination under a commission.

It must be taken as a general rule since our decision in Miller v. Adsit, (18 Wendell, 672,) that though one person, for the protection of his own interest, defend an action in the name of another, yet he will not be liable for the costs which the plaintiff recovers. The action of ejectment, where the landlord defends in the name of his tenant, has been holden to constitute an exception; (Jackson, ex dem. Martin, v. Van Antwerp, 1 Wendell, 295;) but this is contrary to the principle of Miller v. Adsit. In the case at bar, however, the relation of landlord and tenant is denied to exist by the affidavits both of Bogert and Hedges. Their denials too are somewhat fortified by other affidavits; so much so that I think the affidavits on the side of the plaintiffs are met too strongly to warrant us in granting this motion upon the present state of the proofs.

But it is insisted that Hedges having formerly admitted the tenancy, &c. we ought to order a commission and compel his examination in behalf of the plaintiffs pursuant to the 2 R. 8 . 457, 8, 2d ed. § 24, 5. But this, according to the act, is to be done only where a witness has declined to testify voluntarily. Hedges has, in this case, made a voluntary affidavit touching the matter in question, upon the request of Bogert; and we must intend has told the whole truth. At any rate, we must presume, after what he has sworn, that his deposition would be of no use to the plaintiffs,

Motion denied.