Henricus et al. v. Englert.(Supreme Court, General Term, Fifth Department.Headnote
1. Appeal—Questions Raised—Motion fob Costs.Where a motion is made for an order to require certain persons to pay the costs of a suit, and no objection is taken.on the hearing to the competency of the proofs on which the order is granted, the objection cannot afterwards be taken on appeal.
Where a suit is brought in the name of another, and, costs having been awarded against him, a motion is made to require the “real parties in interest” to pay the same, the case is within Code Civil Froc. § 3247, which declares that, under such circumstances, the persons “ beneficially interested ” shall be liable for costs.
3. Same—Okdeb fob Payment—Practice.
The proper practice, under section 3247, to obtain the payment of costs by persons beneficially interested in a suit is by motion, since the statute provides that the remedy shall be given by order, and such a direction as is made by the order could have no place in the judgment.
Appeal from special term, Monroe county.
Action by Charles F. Henricus and others against Charles Englert to recover of the defendant as surety upon a bond for the faithful performance of a building contract. Defendant obtained judgment, and thereupon moved for an order requiring Mary M. Henricus and others, who were not parties to the action, to pay the costs awarded to the defendant in his judgment against the plaintiff. The order was granted, and the said Mary M. Henricus and others appeal.
Argued before Dwight, P. J., and Macomber and Lewis, JJ.D. C. Barnum, for appellants. Wm. E. Werner, for respondent.
The motion was made, as the notice specified, upon an affidavit of the defendant’s attorney; the summons and complaint in a previous action by the appellants herein against the defendant in this action; and upon the judgment roll, testimony, and opinion of the referee in this action. The order recites that all these papers were read on the hearing of the motion, and, so far as the record shows, no objection was made to any of them as incompetent or inadmissible against the appellants. The latter read no papers in opposition to the motion, but apparently stood upon the insufficiency of the proofs to charge them with liability for the costs in question. It is obviously too late now to object to the competency of the proofs upon which the order was granted. That objection should have been made on the hearing of the motion, either preliminarily or when the objectionable proof was offered to be read. Such objection would have brought the question to the attention of the court below, and a ruling thereupon would have been subject to review on this appeal. The objection, not having been made below, is not here.
The proofs, as read, were quite sufficient to establish the fact that the action was brought by the appellants, through the plaintiffs as their agents, which was the manner in which all their business was done, and that the appellants were