p. 716Louis Bourdon, Resp’t, v. Francis A. Martin, as Receiver, App’lt, Robert C. Waldron, etc., Def’t.(Supreme Court, General Term, Third Department,Filed February 12, 1895.)Headnote
Costs—Action by receiver.A judgment creditor is liable for costs incurred by a receiver in supplementary proceedings, where the receivership was not extended to any other judgment, and all the steps taken by him were at the request of the farmer’s attorney.
Appeal from an order, directing the judgment creditor to pay the costs of the action.
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 Transporation Company by an order of interpleader granted on payment into court by the transporation 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 employes of the transporation 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 the interpleader was granted. The judgment against Emma Walker was recovered in an action by Robert Gr. Waldron, and the receiver was appointed in supplementary proceedings thereon. The board sued for was furnished to the employes of the transporation company after Emma Walker, the judgment debtor, had married plaintiff.
J. W. Atkinson, for app’lt; Thomas O' Connor, for resp’t.
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 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 ab
p. 717sence 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, 1 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.