Beck v. Kerr

PARKER, P. J. The judgment upon which this motion is based is, we think, authorized by the order of this court made on May 6, 1902. If we had reversed the judgments, “with costs in the courts below and of this appeal,” and had not ordered a new trial, then such costs [1059] would have been taxed by the cleric oí Ulster county, and a judgment entered by him therefor. In that event they would have been incorporated in our judgment of reversal, and the order of this court would have been the county clerk’s authority for so doing. In this case we reversed the judgments in the court below, but made the costs dependent upon the result of a new trial, which we ordered in the City Court where the trial was first had. The result of that trial being in the appellant’s favor, his right to a judgment for costs under our order became fixed; and it would seem that it was as much the duty of the clerk to enter it up, upon proof that it had so become fixed, as it would have been had we annexed no such condition to their recovery. The statute organizing the City Court of Kingston authorizes the County Court of Ulster county, upon appeal, to order a new trial in the City Court; and, on appeal to this court, in reversing the judgment of the County Court, we assumed the power to make such an order as that court could and should have made. The claim that the final judgment in the City Court in favor of the defendant was improperly rendered is not sustained by the records of that court; nor do we think that such question can be raised upon this motion. The judgment for costs being, then, a valid judgment in favor of this defendant, it remains to determine whether the new board is liable under section 3247 of the Code of Civil Procedure for the costs adjudged against the old board, viz., the plaintiffs in this action. It appears from the record that the action was commenced by the trustees of School District No. 3 of the city of Kingston, without any authority from that district. Under such circumstances, this judgment for costs is not a claim against the property of that district. If chapter 494 of the Laws of 1902 had never been passed, and the plaintiffs, against whom this judgment is rendered, were still the board of trustees of such district, they would have no claim against the property of the district for the same. They are personally liable for such judgment to the defendant, but neither he nor such plaintiffs have any claim upon the property of the district for the payment thereof. People ex rel. Wallace v. Abbott, 107 N. Y. 225, 13 N. E. 779. Therefore, if it be conceded that the new board, as the transferee of the cause of action which the old board was prosecuting, has become liable to pay this judgment for costs, it seems clear that they are liable in their individual capacity only, and not as representing School District No. 3; that is, that their liability to pay such costs does not make them a claim against the property of that district. So far as a liability to pay the costs is concerned, they stand in the place of the old board; but, inasmuch as the liability of that board imposed no liability upon the property of the district, the mere transfer of such liability to the new board will not impose any liability upon the district. Therefore we should not hold that such costs should be paid from any property belonging to School District No. 3, nor against any that has passed to the new board in its official capacity. It remains to determine whether, under the provisions of section 3247 of the Code, the new board should be held individually liable for such costs. The old board claimed that a tax had been lawfully as [1060] sessed upon the defendant, Kerr, for the benefit of School District No. 3, and such claim was the cause of action which it was prosecuting when the new board was created. Although it was not in fact a valid claim, it must be deemed, so far as this question is concerned, that -there was a cause of action to be transferred. Tucker v. Gilman, 58 Hun, 167, 170, 11 N. Y. Supp. 555, affirmed in 125 N. Y. 714, 26 N. E. 756. It being the duty of such old board to collect all valid taxes assessed in behalf of such district, it commenced this action. But, not having obtained authority by a vote of the district to do so, they took the chances of being unable to reimburse themselves from the district for any costs that might be awarded against them in the event that they failed to establish the legality of the tax which they claimed. By chapter 494, p. 1158, Laws 1902, the new board was created as successors of such old board, which was then legislated out of office, and all property belonging to it or to the district was vested in the new board. This operated, in our judgment, to transfer to the new board the cause of action upon which this action is based. If the new board had made application, under section 1930, to be substituted as 1 plaintiffs in the place of the old board removed, it would not be doubted but that, under such statute, they had succeeded to such cause =of action. At the time they so succeeded to such cause of action they found that a judgment had been rendered in favor of the old board for a recovery of the tax against Kerr, and that he had taken an appeal therefrom to this court on the ground that the alleged tax had never been lawfully levied against him. The new board did not apply to be substituted in the place of the old board removed, but it took charge of the case, and allowed it to proceed in the name of the old board, as it had the right to do. Code Civ. Proc. § 756; Hegewisch v. Silver, 140 N. Y. 414, 420, 35 N. E. 658. They employed an attorney — the same one who had been employed by the old board— and defended the appeal. In short, they adopted as their own the cause of action which the old board was prosecuting, and substantially approved the commencement of the action and all the proceedings which the old board had taken therein. Thenceforth the action was really prosecuted for the benefit of the new board. Had the judgment for the tax been affirmed, it would have been collected and paid over to the new board. And so they clearly come within the language and the spirit of section 3247 of the Code. Whether, if the new board had taken no steps whatever in the matter, they would, by operation of such statutes, have been forced into the position of a personal liability for costs in an action neither commenced nor approved by them, it as not necessary to now determine. They did take charge of and defend the appeal. It was upon the motion of their attorney that, instead of reversing the judgments, with costs, we granted a new trial, and made the costs dependent upon its result. They seem to have fully approved the prosecution of the action, and we are of the opinion that under these circumstances section 3247 is applicable to them, and that the same liability for costs which was imposed upon the old board Las now devolved upon them. Section 3247 provides that the court may direct the person who becomes liable for costs under such section to pay them, and declares that a disobedience of the order is a con [1061] tempt of court. It does not provide for the issuance of an execution^ and therefore none should be ordered upon this motion. We conclude that the order appealed from should be reversed, with costs, and that the motion should be granted to the extent of directing that the nine individuals constituting the members of the said board of education pay the said judgment, with costs of such motion. Whether the provisions of article i, tit. 15, of the consolidated school law (Laws 1894, p. 1280, c. 556), are adequate to reimburse such board, we do not now consider, as evidently that question is not before us on this motion. Order reversed, with $10 costs and disbursements, and motion granted as per opinion, with $10 costs. All concur.