Bourdon v. Martin , 81 N.Y. Sup. Ct. 246 ( 1893 )

PUTNAM, J.

We think that on the affidavits and papers presented the court below was authorized to find that defendant, as. receiver, -had been guilty of mismanagement or bad faith in the-defense of the action. Louis Bourdon had commenced an action against the New York & Lake Champlain Transportation Company to recover on an alleged claim for board of employes of said company. It was not necessary for the defendant, as receiver, to take-part in that litigation. A judgment in that action would not have prevented the defendant, Martin, as receiver of Emma Walker, (or Bourdon,) from recovering any just claim due from the company to him. But it seems that he demanded the fund sought to be recovered by Bourdon from the company, and thus voluntarily thrust himself into the litigation. The papers presented were such that the court below could properly determine that Martin was not justified in entering into the litigation. Long before his answer was served, to the knowledge of his attorney, Emma Walker (or Bourdon) had made a positive affidavit that the claim against the-New York & Champlain Transportation Company, sought to be recovered, was the property of her husband. Her husband, in, his affidavit, had sworn to the same fact. The examination of Mitchell in supplemental proceedings was not inconsistent with the affidavit of Mr. and Mrs. Bourdon. It appeared that on the trial of the action the trial judge directed a verdict for the plaintiff, and thus that defendant produced no evidence of the truth of his allegations contained in his answer to submit to a jury. The court below was therefore justified in finding that defendant improperly contested the claim of plaintiff in the action, after the positive affidavit of the party for whom defendant was receiver that such claim was valid, and without any sufficient evidence to sustain the position taken by him. Also, the defendant having voluntarily embarked in the litigation, and, as the affidavits show, without funds to pay the costs, on that account may be deemed guilty of bad faith. Cumming v. Egerton, 9 Bosw. 684. We are therefore unable to hold that the view taken by the special term as to the mismanagement or bad faith of defendant was incorrect.

The motion to charge defendant with costs was made at a special term of this court, after the entry of the verdict, and before the entry of judgment, and not to the judge before whom the case was tried. Doubtless such a motion is properly prescribed to the same court before whom the trial was had. We do not think, however, that it is necessarily so made. It can be heard at any special term before judgment has been entered. This is especially so in a case like this, where it appears that, for some reason not disclosed, the trial judge declined to entertain the motion. Such being the fact, plaintiff’s only course was to apply to a subsequent special term. The case of Hone v. De Peyster, 106 N. Y. 645, 13 N. E. 778, followed by Jack v. Robie, 48 Hun, 181, cited by defendant, are not inconsistent with this view. In these cases, after a trial, the trial court had ordered a judgment against the plaintiffs— in one case an executor, and in the other an assignee—in their representative capacities. A motion was afterwards made in each case to charge the plaintiffs with costs. The motion was denied on the ground that the trial court in each case had charged costs against the plaintiffs, in their representative capacities, and thus impliedly held that they were not liable personally, and that - a collateral attack on such an adjudication is unauthorized. Here no judgment has been entered. The trial court declined to entertain a motion to charge defendant with costs. It does not appear that any direction has been given as to the judgment to be entered, or that plaintiff has taken any steps in the action since, the rendition of the verdict. We think, therefore, that the court below was authorized to make the order from which the appeal is taken. The order should be affirmed, with costs and disbursements. All concur.