Genet v. . Davenport

Folger, J. The facts show that George 0. Genet became the assignee of the claim of the plaintiff pending the litigation. If the plaintiff was cast in judgment for the costs, the assignee became liable for-them, or a part of them. (Code, § 321.) From an examination of the judgment of the referee, and the modification thereof by the General Term, and the subsequent order of the General Term on the motion to correct the judgment, I have no doubt - that it was the decision of the latter tribunal, that the defendant Daren port, retained his judgment against the plaintiff, for his costs. The General Term did not mean to, and did not, vacate the judgment of the referee, except in so much thereof as was modified by it. The modification and the vacating were to the same extent, and did not embrace nor affect, the one more than the other; and there was no modification, and therefore no vacating, of the- judgment, so far as it gave Davenport costs against the plaintiff.. It follows that the appellant, George 0. Genet, is liable to the- defendant, Davenport, for the whole or some portion of the costs of the action. The section of the Code above cited is, that an assignee of a cause of action,, who becomes such after the commencement of the.action, shall be liable for the costs in the same manner as if he were a party. The next to the concluding sentence, in the opinion in Reade v. Waterhouse (52 N. Y., 587), is relied upon- as an authority, that such assignee is not to be personally charged with costs accrued before the assignment. That was the case of one who became assignee of the cause of action officially, through bankruptcy proceedings. It was held that he was not liable personally, for any part of the costs, and still less for those which accrued before he had any official relation with the action. The language of the Code (sec. 321) is, that where the cause of action shall by assignment become the property of a person *609 not a party to the action, he shall be liable for the costs of the action, the same as if he were a party. Now a party, who is liable for any costs, is liable for all. Why is not the assignee, who is liable as if he were a party f And it is for the costs of the action, that is for all the costs of the whole action, that he shall be liable. In Col. Ins. Co. v. Stevens (37 N. Y., 536) all the costs of the action were ordered paid from the fund in the hands of receivers of the plaintiff) who had been appointed to that office pending the action. In Jordan v. Sherwood (10 Wend., 622), a party in interest, though not a party to .the record, was held to pay costs, as well those made before as after, the accruing of his interest. The last case is cited as approved, in Miller v. Adsit (18 Wend., 672, 674; see, also, IIorlock v. Priestley, 8 Simons, 621; Cook v. Hathaway, L. R. [8 Eq.], * 612). The order appealed from should be affirmed, with costs. All concur. Order affirmed.