Marsh, Receiver, Plaintiff and Respondent, v. I. B. Hussey et al., Appellants.
1. Where a receiver of the property of a judgment debtor has received notes -made and indorsed by third persons as being the property of such debtor, and subsequently, as such receiver, brings a suit on such notes, and one of the defendants, who answers separately, obtains a verdict, such receiver is not personally liable to pay the costs of such defendant, unless the Court orders him to pay them for mismanagement or bad faith in such action.
2, Where such defendant issues an execution to collect the costs of the individual property of the receiver, when the Court has made no order directing him to pay them personally, it will be set aside as irr’egular.
(Before Bosworth, Ch. J., Hoffman, Slosson and Moncrief, J. J.)
Heard, June 11th;
decided, June 25, 1859.
Ah appeal "by the plaintiff from an order denying a motion made by him to set aside an execution for irregularity.
William Marsh, the plaintiff, prior to commencing this action, was appointed by a Judge of this Court a receiver of the property and effects of one F. C. W. Wedekind. He was so appointed on proceedings supplementary to execution, in an action in which one Benjamin Marsh was plaintiff, and said Wedekind was defendant. Certain promissory notes made by “ I. B. Hussey & Co.,” alleged to consist of the defendants, “ Isaac B. Hussey and David Clark, had,” by indorsement of the payee thereof, come to the possession of Wedekind, and they were delivered by the latter to the plaintiff as such Receiver.
In April, 1856, the plaintiff, as such Receiver, sired Isaac B. Hussey and David Clark as the makers of said notes, and also made the first indorsers, parties defendants. The defendant, David Clark, separately answered the complaint, and at the trial obtained a verdict.
The moving affidavit states, winter alia, that the defendant Clark, “ on the 30th of October, 1858, recovered a judgment against this deponent, as such Receiver as aforesaid, for $80, costs of said action,” and on the 2d of November, 1858, without any order of the Court, issued an execution, directing the amount of the judgment to be collected from the individual property of the *615plaintiff; that the plaintiff, as such Receiver, never had any property or effects, except the notes on which this suit is brought; that before said execution was issued, the defendants’ attorneys demanded of him payment of the judgment, which he refused to pay, and stated, as the ground of such refusal, the facts above recited. Bosworth, Ch. J., before whom the motion to set the said execution aside was made, denied it, and assigned the fob lowing reasons, viz.:
“ The plaintiff is not an 1 executor,’ 1 administrator,’ ‘ trustee of an express trust,’ nor 1 a person expressly authorized by the statute ’ to bring suits.
“ He is not protected by section 317 of the Code from the consequences which section 305 visits upon a plaintiff who brings an action for the recovery of money, (§ 304, sub. 4,) and has a verdict pass against him.
“ Before the Code, a Receiver, who sued at law without previous leave of the Court, paid costs as a matter of course. Sections 304 (sub. 4) and 305 leave him, in this respect, precisely as the preexisting law did.”
From the order denying that motion, the plaintiff appealed to the General Term.
A. K. Hadley, for the appellant,
Cited 3 Seld., 294; 2 id., 236; 5 id., 142, as holding that the plaintiff is a trustee of an express trust; and Laws of 1845, (pp. 90, 91, § 2,) in support of the proposition that he is “ a person expressly authorized by statute” to bring an action.
• To show that the execution was irregular, he cited the Code, § 317; 6 Hill, 386; 12 How. Pr. R., 301; id., 305; 9 id., 344; and 5 Duer, 648.
G. T. Jenks, for respondent.