Metropolitan Addressing & Mailing Co. v. Goodenough

18 N.Y.S. 212, 21 N.Y. Civ. Proc. R. 268

• Court: The Superior Court of the City of New York and Buffalo
• Decided: August 24, 1891
• Status: Published

Opinion

McAdam, J.

The proofs show that Herbert D. Van Auken was the promoter of the suits brought. He signed the contract under which they were-commenced, and in Exhibit C he refers to them as “my” (his) case. The-action was wrongfully commenced in the name of the Metropolitan Addressing & Mailing Company, on the theory that it was a corporation. It was-in fact the name under which Van Auken did business; a feature not discovered by the defendants until long after the action terminated in their-favor, with $114.10 costs. These circumstances show that Van Auken was “beneficially interested” in the action, within the meaning of section 3247 of" the Code,¹ and therefore liable for the costs to the same extent as if he had. been the plaintiff of record. Slauson v. Watkins, 95 N. Y. 369; Waring v. Baret, 2 Cow. 460; Winants v. Blanchard, 12 N. Y. St. Rep. 384; Giles v. Halbert, 12 N. Y. 32; Miller v. Franklin, 20 Wend. 630; Pendleton v. Johnson, 18 N. Y. Supp. 211. If the nominal plaintiff had succeeded, the fruits of" -the recovery would have gone to Van Auken; and he is personally chargeable-with the costs under the Code provision cited, as well as upon the further-ground that he was the wrongful promoter of the action. Society v. Loomis,. (Sup.) 3 N. Y. Supp. 572. The judgment, being exclusively for costs, belongs to the attorney. Marshall v. Much, 51 N. Y. 140.

The objection that the motion is premature because no execution has been issued and returned unsatisfied (Perrigo v. Dowdall, 25 Hun, 234) is unavailing, because the proofs show that the plaintiff is not a legal entity, and incapable of owning property; hence the issuing of an execution would be idle ceremony, the forms of which are never required where they would prove nugatory and result in nothing. Motion to charge Van Auken with the costs granted.

1 Code Civil Proc. § 3247, declares that “where an action is brought in the name of another by a transferee of the cause of action, or by any other person who is beneficially interested therein, * * * the transferee or other person so interested is liable-for the costs in the like cases and to the same extent as if he was the plaintiff.” etc.