Thorn v. . Beard

Earl, J. 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 so liable 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.” 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 *486 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. 1 Order affirmed.