Thorn v. Beard — 54 N.Y. St. Rep. 807

Majority

p. 807

Mary Thorn, Ex’rx, Resp’t, v. Oliver T. Beard, App’lt.^[1]

(Court of Appeals,

Filed October 24, 1893.)

Headnote

■.Costs—Assignee of claim as collateral not a person beneficially interested withn § 3247 of the Code.

Where a claim is assigned to secure a debt due from the assignor, and the litigation over the claim is carried on from beginning to end by the assignor and his executrix after his death, the assignee taking no part in the litigation, the latter is not liable for the costs recovered by the defendant under § 3247 of the Code.

Appeal from order of the supreme court, general term, second -department, affirming order denying motion to compel one Peter- D. Hayt to pay defendant’s costs.

On the 3d day of January, 1888, William I. Thorn, being indebted to Peter D. Hayt, for the purpose of securing the payment of the indebtedness, assigned to him a demand which he claimed to have against the defendant, Oliver T. Beard. Thereafter, in May, 1889, Thorn commenced an action against Beard upon his •demand, and in ^November, 1889, he recovered a judgment thereon

p. 808

'for $1,800 and costs. Beard appealed from that judgment to the-general term, and while the appeal was pending there Thorn died, and his executrix was substituted as plaintiff in his stead. In. May, 1891, the judgment was affirmed at the general term. In June thereafter Hayt commenced an action against Mrs. Thorn, the executrix, alleging the assignment of William I. Thorn tollina of his claim against Beard and the recovery of judgment thereon, and he prayed judgment of the court establishing his-right to the judgment, and that the costs and counsel fees due to any person therein might be adjusted. Thereafter Hayt and Mrs. Thorn entered into an agreement adjusting the amount of his interest in the judgment, and it was therein stipulated that one of' the plaintiff’s attorneys, Morschauser, had a lien upon the judgment to the extent of $750, which should be paid to him, and that the balance of the judgment and interest should be paid toHayt “ when collected ; ” and it was provided that judgment, might be entered upon the agreement,. In April, 1892, Beard appealed from the judgment to the court of appeals, and there the-judgment was reversed and a new trial granted; and upon the new trial the complaint was dismissed, and Beard had judgment, in his favor for $728.60 costs. Beard then made a motion for an order requiring Hayt to pay his costs under § 3247 of the Code.

Further facts are stated in the opinion.

Oliver T. Beard, for app’lt; Hackett & Williams, for resp’t.

Section 3247 provides as follows: “ Where an action is brought in the name of another by a transferee of the cause of' action, or by any other person who is beneficially interested therein; or where, after the commencement of an action, the cause-of action becomes, by transfer or otherwise, the property of a person not a party to the action, the transferee, or other person so interested, is liable for costs in the like cases, and to the same extent, as if he was the plaintiff; and where costs are awarded against the plaintiff the court may, by order, direct the person sellable to pay them. ”

So far as there is any conflict in the affidavits read upon the-motion, we must take the facts to be as stated in the affidavits on the part of Hayt, and from his affidavits it appears that he did not commence the action in the name of Thorn, nor did he authorize or procure its commencement, and at no stage of the litigation did he carry it on. He cannot, therefore, be made liable for costs under the first clause of the section on the ground that-as transferee of the cause of action, or as one beneficially interested therein, he brought the action in the name of Thorn. Nor can he be made liable under the second clause of the section on the ground that after the commencement of the action the cause of action became, by transfer or otherwise, his property. The judgment was not assigned to him and he never owned it He had an interest in it to the full amount due thereon above $750, by virtue of his assignment of the claim, which sum of $750 was-payable out of the judgment to another party, and the balance of the judgment payable to him was to.be paid “ when collected.”'

p. 809

So we have a case where a claim was assigned to Hayt to secure a debt to him from the assignor where the litigation over the claim was carried on from beginning to end by the assignor and his executrix after his death, Hayt taking no part in the litigation; and such facts in our opinion do not make him liable for the costs recovered by the defendant in the action under the section of the Code cited.

The order of the general term should be affirmed, with costs.

All concur.