Bourdon v. Martin

32 N.Y.S. 441, 84 Hun 179, 91 N.Y. Sup. Ct. 179, 65 N.Y. St. Rep. 716

Opinion

HERRICK, J.

This is an appeal from an order of the special term charging the appellant with costs obtained in an action against a receiver under a judgment obtained by the appellant. It appears that the appellant is the only person that would have been benefited by the fruits of the action commenced by the receiver. The receivership has not been extended to any other judgment. The attorney who conducted that action for the receiver was the appellant’s attorney, the one who had conducted the proceedings supplementary to execution, the one who had appeared for the appellant in the original judgment, the one who appeared also for the appellant before the special term resisting the application charging him with costs. The receiver swears that all the steps taken by him were at the request of said attorney. The appellant’s affidavit was somewhat evasive, and that, coupled with the absence of the attorney’s affidavit, in face of the fact that the moving papers charged that such attorney was acting for and at the request of the appellant in conducting the litigation in question, in the name of the receiver, justified, I think, the special term in assuming that such attorney was acting for the appellant, and at his request, and upon his retainer, all through these proceedings, and that the receiver was, in fact, the mere instrument through which such attorney acted. Such being the fact, the order was abundantly justified, by the case of Ward v. Roy, 69 N. Y. 96, and should be affirmed, with $10 costs of this appeal, and printing and other disbursements. All concur.