Bliss v. Otis

1 Denio 656

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: September 15, 1845
• Status: Published

Opinion

By the Court, Beardsley, J.

Mr. Dewitt had an interest in the demand in suit, and was therefore liable for costs if the action'was brought by him as a “ person beneficially interested, in the recovery.” The statute is direct to this point. It declares, not only that the assignee shall be liable, but also “ any person beneficially interested in the recovery.” (2 R. S. 619, § 44; Whitney v. Cooper, 1 Hill, 629; Miller v. Franklin, 20 Wend. 630.) It is denied, however, by Mr. Dewitt, that the action was brought by him as a party interested, and he insists that he proceeded upon his retainer as an attorney, and in the ordinary course of professional employment. I deem it unnecessary to pass upon this view of the question in any aspect, for it is not denied that he gave notice to the defendant that he was absolute assignee of the demands in suit, and alone authorized to receive or compromise the same. By this he assumed to substitute himself fully and unreservedly for the plaintiffs, and thereby precluded all room for an arrangement of the matters in suit between the parties to the record. For the purpose of the present question, I think Mr. Dewitt' must abide by the position he thus assumed, and that he cannot be allowed to change it in order to avoid the payment of costs.

Motion granted.