19 Jones & S. 51 51 N.Y. Super. Ct. 51


Decided December 1, 1884.

Costs— When third party may not he charged with, under § 3247, Code. Attorney and client.

3. having sued E. to recover a just demand, E. delivered to J.’s attorney-in the action, divers claims, on the understanding between him (E.) and the attornej, that collections thereon were to be applied in satisfaction of J.’s claim, and the surplus to be paid to E. Of this, J. was aware. Thereafter the attorney brought action in E. s name on one of the claims, which resulted in a judgment for costs against E. Neither this, nor any action, was authorized by J., and he was ignorant of it, till a motion was made to charge him with such costs.

Meld. That J. could not be made liable for the costs, under § 3247, Code Civ. Proc., as the party beneficially interested in the recovery, and that J.’s attorney had no implied authority to bring action on the claims for which J. might be made liable.

Before Sedgwick, Ch. J., and Van Vorst, J.

Appeal from order charging a third party with costs.

The facts sufficiently appear in the opinion.

Stephen B. Brague, for appellant.

I. This case does not come within the meaning or intent of section 3247 of the Code (Peck v. Yorks, 75 N. Y. 421; Dowling v. Buckling, 58 Ib. 658 ; Wolcott v. Holcomb, 31 Ib. 125).

Should it be claimed that Mr. Jackson acted through his attorney, the answer is, that the attorney was not *52retained for this purpose, and had no authority to take claims with ah the responsibihties, as to their validity or legahty, and it cannot be assumed that either Hr. Jackson or his attorney would have directly entered into any contract or agreement to prosecute, at his risk, the stale claims of Mr. Ehiot. Elhot was the plaintiff in this action, and a judgment debtor in another action ; he was desirous of paying- his judgment; he furnished a claim for services with the items, day and date ; it was prosecuted without the knowledge, request or consent of Mr. Jackson.

Edward P. Wilder, for respondent.

I. The appellant was a person “ beneficially interested ” in the claim in suit within the meaning of § 3247 of the Code.

In order to be “beneficially interested” in the claim and collection thereof, a person need not be the possessor of a formal written assignment of a claim. A sufficient “interest ” to make him hable for the costs of an unsuccessful suit upon the claim may arise in various ways. Thus, for example, it may arise by virtue of an agreement resting wholly in parol between him and the plaintiff of record, that if the claim should be collected, he should receive one-half or other portion of the proceeds over and above the costs (Merceron v. Fowler, 46 Super. Ct. 351; Giles v. Halbert, 12 N. Y. 32). Or such interest may be created by a mere hen or mortgage upon the claim in suit, and without any formal assignment (Whitney v. Cooper, 1 Hill, 629 ; Colvard v. Oliver, 7 Wend. 497). In this case, the agreement made between plaintiff and Mr. Brague is not denied, and both Brague and the appellant agree that Brague’s subsequent proceedings thereunder were taken with the appellant’s knowledge and consent, and with a view of applying the proceeds towards the satisfaction of appehant’s judgment against the plaintiff (Application of Tyng, 17 W. Dig. 234; Slauson v. Watkins, 18 Ib. 551 ; S. C., 95 N. Y. 369).

II. Even if an assignment were necessary it need not be formal, nor in writing, nor subscribed by the assignor.

*53A chose in action may pass by parol or by any other act that indicates an intention to effect a transfer (Doremus v. Williams, 4 Hun, 458).

By the Court.

Van Vorst, J.

This is an appeal from an order directing William H. Jackson to pay the costs secured by the defendant above named against the plaintiff, on the ground that Jackson was the person beneficially interested in the securing of any judgment herein.

Section 3247 of the Code of Civil Procedure provides that where an action is brought in the name of another by the transferee of the cause of action, or by any other person, who is beneficially interested therein, such transferee or other person, so .interested, is hable for costs, etc. The ground upon which the liability of Jackson was placed by the order was, as has been seen, that he was the person beneficially interested. It is not claimed that Jackson was the transferee of the cause of action. The fact seems to be that Jackson, through his attorney, was attempting to collect a just demand against Elliot, the plaintiff in this action, and was proceeding in a suit on the equity side of the court, to obtain satisfaction of his claim ; that Elliot, whilst Jackson’s suit was pending against him, delivered to the attorney of Jackson certain claims he had against others, for collection, among which was a demand against the defendant in this suit. The understanding between Elliot and the plaintiff’s attorney was, that if anything was collected on these claims, they should be credited on the demand of Jackson against him, which was then in course of prosecution, and any balance that might arise after payment of Jackson’s claim, was to be handed over to Elliot. The claim against the defendant was prosecuted in the name of Elliot, and the result was a judgment for the costs, which have been directed to be paid by Jackson.

Do these facts sustain the order made ?

Was the suit prosecuted by Jackson in the name of Elliot, and was he the party principally interested f Jackson has in effect sworn that he did not authorize the *54commencement of the suit against the defendant in favor of Elliot. He says “ that he never knew or heard of the defendant, or knew that an action had been brought against him by the plaintiff until the motion papers herein were served.” There is nothing in the papers to impair the truthfulness or break the force of this clear statement. He further says that he never requested or advised any action to be brought. He know, however, that certain claims had been furnished by Elliot to his attorney in the action against Elliot, but says they were collateral, to be accounted for if collected.

It is going a great way to hold that Jackson was prosecuting a suit in the name of Elliot, when he know nothing of the commencement or pendency of the action, until he was served with papers calling upon him to pay the costs thereof.

The action in favor of Elliot was commenced, it is true, by the person employed by Jackson to prosecute his suit against Elliot ; but such employment certainly did not justify the attorney, to whom the claims were delivered, to commence suits therein, for which Jackson might be made liable. The fact that the attorney held the claims for collection, the avails to be applied to the payment of his Ghent’s claim, did not authorize him to bring suits, for which Jackson should in any way be liable either to himself or others. In order to show such authority in an attorney to bring actions in the name of another, for which his chent shah be made hable, more must appear than is shown in these papers.

Not can it be said that Jackson was the person principally intrusted in a true sense. Elliot was seeking to pay a just debt. Whatever was collected went directly to diminish his liability, and the surplus, if any, was his property. He had made no assignment of the claim. He had delivered it for collection only. The action was properly brought in his name. He seemed to be the one chiefly interested, and attended upon the trial several days, and produced the evidence to sustain his claim.

*55The attorney in his affidavit in opposition to the motion says that there was no agreement between him and Elliot “ that Jackson should prosecute this action or pay the expenses thereof.”

In view of all the facts I cannot consider that Jackson was hable for these costs, as he did not direct the bringing of the action, nor did he countenance or adopt it in any way after its commencement. He was ignorant of the action of the attorney in its conduct, the attorney having-no authority from him, actual or constructive, to bring it for him in the name of another, or to charge him with its consequences. I have examined the several cases cited in the respondent’s brief, and find no case which would justify charging Jackson with these costs upon the facts appearing in the papers. The result reached is that the order appealed from is reversed, with costs and disbursements.

Sedgwick, Oh. J., concurred.

Elliot v. Lewicky
19 Jones & S. 51 51 N.Y. Super. Ct. 51

Case Details

Elliot v. Lewicky
Decision Date
Dec 1, 1884

19 Jones & S. 51

51 N.Y. Super. Ct. 51

New York



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