Bendernagle v. Cocks — 19 Wend. 151

Majority

p. 151

Bendernagle vs. Cocks.

ALBANY,

Oct. 1838.

Headnote

A party in interest, though not a party to the record who prosecutes a suit in the name of another, is liable for costs if he fail in a recovery; but if he succeed and the defendant sues out a writ of error and the judgment is reversed, he is not liable for the costs of the reversal.

This was a motion that William S. Sears pay the cost of the reversal of a judgment obtained by Cocks against Bendernagle in the New-York common pleas, which was removed by Bendernagle into this court by Writ of error. The motion was founded upon the allegation that Sears was the real plaintiff in the suit in the C. P. and prosecuted it for his own benefit, although it was brought on a demand claimed to be due to Cocks ; and that the writ of error had been defended by him. Sears denied that he was the beneficial owner of the demand prosecuted in the C. P. and alleged that both in the C. P. and in this court, he had acted

p. 152

merely as the attorney of Cocks. The evidence of the party in interest was conflicting.

By the Court,

Assuming that Sears was the owner of the demand prosecuted in the common pleas, he succeeded in recovering a judgment in that court; had he failed, he would have been liable in that court to the defendant’s costs. In this court, instead of prosecuting he defended, and we have repeatedly held that a party defending a suit in the name of another, though himself the party in interest, is not liable to the costs of the action if the defence prove unsuccessful. We cannot regard the writ of error as such a continuation of the suit below as to place the defendant in error in the light of a party prosecuting his demand. He is not a volunteer in this court, but is called here by his adversary—the same as a defendant in an ordinary suit. There may be a necessity for bringing the writ .of error in consequence of the institution of the suit below ; but so it may be said in all cases, that there is a necessity for bringing a suit against the defendant because he neglected or refused to pay the debt claimed by the plaintiff, and therefore the party in interest who defends the suit, though not a party to the record, should pay the costs of the suit. A writ of error is not a continuation of the suit below, because it may be sued out by a new attorney without obtaining a rule for a change of attorney. 7 T. R. 337. 8 Johns. R. 287.

Motion denied.