Metropolitan Concert Co. v. Sperry , 65 N.Y. Sup. Ct. 470 ( 1890 )

Daniels, J.

The action was commenced by the plaintiff to recover the value of certain property, and an order of .arrest was made under which the defendants, or one of them, certainly, was held to bail. This order was afterwards vacated, and the complaint in the action was finally dismissed for the want óf prosecution. ' These two sureties after that applied to the court to set aside the default, and to permit them to prosecute the action. That order was made, and they proceeded from that time with the prosecution of the suit. It finally reached the court of appeals, where it was held that the plaintiff was not entitled to recover, and a judgment for the costs was recovered in the action. 23 N. E. Rep. 1152, mem. The plaintiff was then insolvent, and this motion was made to require these two sureties to pay the costs which had been recoverd, under the authority of section 3247 of the Code of Civil Procedure. But the motion was denied, for the reason that the cause of action had not been transferred to them, and they did not become beneficially interested therein. And that appears by what had taken place to have been their situation. No transfer of the cause of action, or any interest in it, was made to them. They did not become beneficially interested in it in any form; nor did it, by transfer or otherwise, become their property. And it is only when the action may be carried on by a party sustaining one of these relations to it that this section of the Code has subjected him or them to liability for the costs. By no fair construction of the language of any part of the section can it be held to include the case of these sureties. What they did in the w'ay of prosecuting the action was to protect themselves against liability on their undertaking, and not to secure any advantage or interest whatever in the recovery. The remedy of the defendants, if they are entitled to recover these costs from the sureties in the undertaking, must, therefore, be by an action upon that instrument. It was given in compliance with section 559 of the Code of Civil Procedure, and it bound these sureties, if the defendants should recover judgment, to the effect that the plaintiff would pay all costs which might be awarded to the defendants. And if the plaintiff shall fail to pay, as it is probable it may, because of its insolvency, then, according to this section, the defendants may have an ample remedy against the sureties upon the undertaking. That is the provision that has been made in their favor, and it is under that, if they can secure indemnity at all, that they must proceed for the recovery of these costs. The order, therefore, was right and it should be affirmed, with $10 costs, and the disbursements.

Van Brunt, P. J., concurs.