Majority
p. 441(84 Hun, 179.) BOURDON v. MARTIN. (Supreme Court, General Term, Third Department February 12, 1895.) Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Headnote
Costs—Who Liable—Action bt Receiver.A judgment creditor will be charged with costs incurred by the receiver in supplementary proceedings on his judgment, where the receivership was not extended to any other judgment, and all the steps taken by the receiver were at the request of the judgment creditor’s attorney.
Appeal from special term, Saratoga county.
Action by Louis Bourdon against Francis A. Martin, as receiver of the property of Emma Walker, a judgment debtor, substituted as defendant in place of the New York & Lake Champlain Transportation Company by an order of interpleader granted on payment into court by the transportation company of the money sued for. The action was brought to recover the sum of $243.20 for board alleged to have been furnished to the employés of the transportation company by plaintiff. The receiver of the judgment demanded the amount sued for, alleging it was due to the judgment debtor, and thereupon the order of interpleader was granted. The judgment against Emma Walker was recovered in an action by Robert O. Waldron, and the receiver was appointed in supplementary proceedings thereon. The board sued for was furnished to the employés of the transportation company after Emma Walker, the judgment debtor, had married plaintiff. From an order directing Robert C. Waldron to pay the costs of the action, said Waldron appeals.
Affirmed.
For appeal from order charging the receiver personally with costs, see 26 N. Y. Supp. 378 , 37 N. E. 571 .
J. W. Atkinson, for appellant.
Thomas O’Connor, for respondent.
This is an appeal from an order of the special term charging the appellant with costs obtained in an action against a receiver under a judgment obtained by the appellant. It appears
p. 442
that the appellant is the only person that would have been benefited by the fruits of the action commenced by the receiver. The receivership has not been extended to any other judgment. The attorney who conducted that action for the receiver was the appellant’s attorney, the one who had conducted the proceedings supplementary to execution, the one who had appeared for the appellant in the original judgment, the one who appeared also for the appellant before the special term resisting the application charging him with costs. The receiver swears that all the steps taken by him were at the request of said attorney. The appellant’s affidavit was somewhat evasive, and that, coupled with the absence of the attorney’s affidavit, in face of the fact that the moving papers charged that such attorney was acting for and at the request of the appellant in conducting the litigation in question, in the name of the receiver, justified, I think, the special term in assuming that such attorney was acting for the appellant, and at his request, and upon his retainer, all through these proceedings, and that the receiver was, in fact, the mere instrument through which such attorney acted. Such being the fact, the order was abundantly justified, by the case of Ward v. Roy, 69 N. Y. 96 , and should be affirmed, with $10 costs of this appeal, and printing and other disbursements. All concur.
Cases cited
- Ward v. Roy 69 N. Y. 96 p. 442