Henricus. v. Englert — 43 N.Y. St. Rep. 598

Majority

p. 598

Charles F. Henricus et al., v. Charles Englert, Resp’t. Mary M. Henricus et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

1. Motions and orders—Objections.

An objection to the competency of the proofs should he made on the: hearing of the motion, and cannot he raised for the first time on appeal from the order. ,

2. Costs—Persons beneficially interested—Code Civ. Pro., § 3247.

Proof that the action was brought by certain persons through the plaintiffs as their agents, and that such persons are the real parlies in interest, is sufficient to bring the case within § 3247- of the Code. The term “ real parties in interest” is equivalent to the term “person beneficially interested.”

3. Same.

Application to compel payment of costs by the person beneficially interested should be made by motion.

p. 599

Appeal from an order of Monroe special term requiring the appellants, not parties to the action, to pay the costs awarded to the defendant in his judgment against the plaintiffs herein.

]). Q. Barnum, for app’lts; T'7m. M Werner, for resp’t.

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 in fact the real parties in interest. This brings the case directly within the provisions of § ■3247 of the Code of Civil Procedure, which so far as it is applicable to a case like the present, reads as follows : “ Where an action is brought, in the name of another, by a * * * person who is beneficially interested therein * * * the * * * person ■so interested is liable for costs in the like cases and to the same •extent as if he was the plaintiff; and, when costs are awarded against the plaintiff the court may, by order, direct the person so liable to pay them.” The objection that the notice of motion •did not specify the grounds presented by this section of the Code is not tenable. One of the grounds specified is that the appellants are the real parties in interest, and that the plaintiffs brought the action as their agents; the term “real parties in interest” is ■quite equivalent to the term “person beneficially interested.” The practice of the defendant in pursuing his remedy, under § 3247, by motion, was correct. The section expressly 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

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Macomber and Lewis, JJ., concur.