Lyon v. Wilder — 16 N.Y. St. Rep. 875

Majority

p. 875

Edward Lyon as Receiver, App’lt, v. Edward P. Wilder, Resp’t.

(New York Superior Court, General Term,

Filed June 20, 1888.)

Headnote

Costs—Security for—Deposit by surety.

Plaintiff was, by order of court, directed to pay into court the sum of $350, to be applied to the payment of defendant’s costs, or that he file an undertaking. The plaintiff filed an undertaking, but the sureties preferring not to have the trouble of justification, one of them furnished $350, which was deposited with the clerk, who gave to the attorney for the plaintiff a receipt as follows: “Received from Charles Forbes per T. F. Sauxay, attorney, as security costs for the defendant Muxlow pursuant to an order of this court.” Held, that this, in effect, was an election of the plaintiff not to file the undertaking but to obey the order by depositing the money. The money became the money of the plaintiff, and the surety became the creditor of the plaintiff in the amount deposited.

Appeal from an order directing the application of moneys deposited with the clerk of the court to the payment of defendant Wilder’s costs.

John H. Parsons, for app’lt; Charles H. Kitchel, for resp’t.

In the course of the action the defendant Muxlow had applied for an order compelling the plaintiff to file security for the payment of his costs, and an order was made that the plaintiff pay into court the sum of $250, to be applied to the payment of defendant Muxlow’s costs,

p. 876

or that he file an undertaking, etc. The plaintiff commenced to obey the order by filing an undertaking. The sureties preferred not to have the trouble of attending justification, and one of them furnished $250 in money.

This money was deposited with the clerk, who probably, without the knowledge of the defendant or their attorney of the form of the receipt, gave to the attorney for the plaintiff a receipt in this form: Received from Charles Forbes per T. F. Sauxay, attorney, as security costs for the defendant, Jane B. Muxlow, pursuant to an order of this court.

This, in effect, was an election of the plaintiff not to file the undertaking but to obey the order by depositing the money. In my opinion the money became the money of the plaintiff, and the appellant Forbes was the creditor of the plaintiff in the amount deposited. For this reason the appellant was not aggrieved by the order appealed from, as he did not own the money.

Order affirmed, with ten dollars costs.

Freedman, J., concurs.