p. 173This is an appeal by the defendant Watkins from an ■order made at special term, denying, as premature, a motion which sought to charge the defendant Ludington, who is alleged by the moving papers to be the person beneficially interested in the recovery, and who brought this action in the plaintiff’s name, with the judgment for costs, entered against the plaintiff.
The motion was held premature, on the ground that an appeal herein from said judgment, without security' •or stay, was pending on behalf of the plaintiff.
Oliver N. West, for appellant, urged :
—I. Section 44 of the Revised Statutes (vol. 2, p. 619) provides as follows: Where any action shall be brought in the name of another, by any assignee of any right of action, or by any person beneficially interested in the recovery in such action, such assignee, or person, shall be liable for costs, in the same cases, and to the same extent in which a plaintiff would be liable, and the payment of .such costs may be enforced by attachment.”
II. The moving papers show beyond any dispute that Ludington brought the action in Mrs. Slauson’s name, and that he is the person beneficially interested :in the recovery. They show also that the plaintiff, by reason of having given no security on her appeal, nor secured any stay of proceedings, is now liable (notwithstanding the pendency of such appeal) to pay this judgment for costs, and this, notwithstanding the fact, that for her to make such payment now, when the court might hereafter determine the judgment to be wrong, would be a possible hardship. (Execution has in fact, as appears in the moving papers, been issued against the insolvent plaintiff and returned, “no goods.”)III. This, then, is a case in which the nominal plaintiff is now “liable for costs ” to the full “extent.” If the statute means anything at all, it means that the
p. 174liability of the real party shall be co-extensive with that of the sham plaintiff upon the record. In case Mrs. Slauson is now liable, so also, is liable Ludington. To what extent she is liable, to that extent also is he liable. If it be not premature to enforce the judgment against her, neither is it premature to proceed against him. He is the real plaintiff, and her liability is his liability. Having stepped into her shoes, when he found it convenient, in bringing his action, the statute says that he shall stand in them, although he now finds it more convenient to step out of them.IV- The order affects a substantial right, and is appealable (Code, § 1,347 ; 29 N. Y. 634 ),George W. Lord, for respondent.
It was not only discretionary, but eminently proper for the court below to decline, during the pendency of plaintiff’s appeal in the court of appeals, to summarily order the defendant Ludington, as the person who is alleged to have brought the action in plaintiff’s name, and to be beneficially interested in the recovery, if any were had, to pay the judgment for costs recovered by the defendant Watkins. The mere fact that at the time of the motion no security on appeal had as yet been filed, and no stay of proceedings had been obtained, did not give Watkins such an absolute right to proceed summarily as to deprive the court of all discretion in the matter. The denial of the motion as premature may be treated as equivalent to a stay of proceedings, granted upon a consideration of the special circumstances of the case.
The order should be affirmed, with costs.
Sedgwick and Speir, JJ., concurred.