Miller v. Franklin

20 Wend. 630 | N.Y. Sup. Ct. | 1839

By the Court, Bronson, J,

When one man, as assignee or as beneficially interested in the demand, brings an action in the name of another, he is liable for the costs which may be adjudged to the defendant; and is also bound to indemnify the plaintiff on record. 2 R. S. 619, § 44. 20 Johns. R. 475. 2 Cowen, 460. 18 Wendell, 672. 7 Id. 497. An assignee is liable to the defendant for costs, although the assignment is made pending the suit, if he afterwards proceeds in the action, Schoolcraft v. Lathrop, 5 Cowen, 17 ; and in such a case he takes the demand cum onere, and is liable for the costs which had accrued before, as well as those which may arise after the assignment. Jordan v. Sherwood, 10 Wendell, 622. But the mere fact of taking an assignment pending the action, will not, I think, make the assignee liable, unless he afterwards carries on the suit. What will amount to a prosecution of the suit, may sometimes be a debatable question. If the assignment is absolute, so that the plaintiff on record no longer has any interest, it cannot be necessary to prove that the assignee was actively engaged in the further progress of the litigation ; it will be enough to show that he knowingly suffered the suit to proceed for his benefit.

In this case, the assignment, though absolute in terms, was taken by way of collateral security for the debt due to Randall, and as an indemnity against his liability as endorser for the plaintiff. It was expressly understood at the time that Randall was not to be answerable for the costs, or to have any thing to do with the suit; but if anything was obtained, he was to apply the money to the liquidation of his claims against the plaintiff. Randall would be liable to account to the plaintiff for the money which he might receive, and to pay over any surplus that might remain after satisfying his demands. The transaction amounted to little more than an order for the payment of any money' that might be collected. A recovery in the action would increase the security of Randall • but that was all the interest he had in the matter. The interest of the plaintiff on record was just as great after, as it was before the assignment. .It was still his suit, and was, in effect, carried on for his benefit. Under such circumstances we think the assignee is not liable to the defendant for costs 9 that he would not be liable, even if he had co-operated with the plaintiff or his attorneys, in carrying on the suit. But that Randall has not done. The letter he wrote in answer to one received, from the defendant’s attorney, is not inconsistent with the account which he now gives of the transaction 9 and upon the most material points he is supported by the affidavits of other persons. The statement of the plaintiff Miller is not only denied by Randall and a third person, but it is contradicted by the assignment itself. It is of no importance that Miller was away while the suit progressed. It was carried on by his attorneys, and for his benefit. When Randall was applied to by one of the plaintiff’s attorneys, he refused to take the charge, or to have anything to do with the suit. It is impossible, under such circumstances, to hold him liable for costs.

Motion denied.