Pendleton v. Johnson

18 N.Y.S. 211, 21 N.Y. Civ. Proc. R. 272

• Court: The Superior Court of the City of New York and Buffalo
• Decided: June 11, 1891
• Status: Published

Opinion

McAdam, J.

The proofs are convincing that, as the assignor resided in Hew Jersey, he assigned his demand to the plaintiff, a resident of Hew York, to avoid the necessity of giving security for costs; that, while the legal title to the claim was put in the plaintiff to answer the purposes of the prosecution, (Sheridan v. Mayor, 68 N. Y. 30,) the equitable and beneficial interest remained in the assignor, and he is chargeable with the costs, under section 3247 of the Code.¹ Slauson v. Watkins, 46 N. Y. Super. Ct. 172; Winants v. Blanchard, 12 N. Y. St. Rep. 384; Society v. Loomis, (Sup.) 3 N. Y. Supp. 572; Giles v. Halbert, 12 N. Y. 32; Whitney v. Cooper, 1 Hill, 629; Colvard v. Oliver, 7 Wend. 497; In re Tyng, 17 Wkly. Dig. 234.

The return of the execution unsatisfied is sufficient evidence of inability to collect from the assignee. Perrigo v. Dowdall, 25 Hun, 234. Motion to charge assignor with 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 costs in the like cases and to the same extent as if he was the plaintiff, ” etc.