Wheeler v. Wright

New York Supreme Court

Wheeler v. Wright

14 Abb. Pr. 353, 23 How. Pr. 228

CourtNew York Supreme Court

DecidedMay 15, 1862

StatusPublished

Cited by2 cases

This text of 14 Abb. Pr. 353 (Wheeler v. Wright) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wheeler v. Wright, 14 Abb. Pr. 353, 23 How. Pr. 228 (N.Y. Super. Ct. 1862).

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Opinion

Johnson, J.

If this motion can be granted, it must be upon the ground that Eben Wheeler, the judgment-creditor, was beneficially interested in the recovery in the action. It must be conceded that had the plaintiff succeeded in the action, the recovery would have been for the exclusive benefit of the judgment-creditor. But this is not enough to charge a person not a party with the costs of the action. The statute (2 Rev. Stat., 619, § 44 ; 5 ed., 3 Ib., 909, § 10) relates only to actions “ brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action.” Ro matter to what extent the person sought to be charged, who is not a party, may be interested in the recovery, if in truth he is not chargeable with having brought the action, he is not chargeable with costs. (Giles a. Halbert, 12 N. Y., 32 ; Whitney a. Cooper, 1 Hill, 629 ; Miller a. Adsit, 18 Wend., 672.)

This is the only test, as shown by all these cases. Indeed, the language of the statute is too plain and explicit to admit of any other construction. This, of course, has no reference to the class of cases provided for by section 321 of the Code, where the cause of action is assigned after the action is commenced.

The motion must therefore be denied, with costs.

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Johnson, J.

If this motion can be granted, it must be upon the ground that Eben Wheeler, the judgment-creditor, was beneficially interested in the recovery in the action. It must be conceded that had the plaintiff succeeded in the action, the recovery would have been for the exclusive benefit of the judgment-creditor. But this is not enough to charge a person not a party with the costs of the action. The statute (2 Rev. Stat., 619, § 44 ; 5 ed., 3 Ib., 909, § 10) relates only to actions “ brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action.” Ro matter to what extent the person sought to be charged, who is not a party, may be interested in the recovery, if in truth he is not chargeable with having brought the action, he is not chargeable with costs. (Giles a. Halbert, 12 N. Y., 32 ; Whitney a. Cooper, 1 Hill, 629 ; Miller a. Adsit, 18 Wend., 672.)

This is the only test, as shown by all these cases. Indeed, the language of the statute is too plain and explicit to admit of any other construction. This, of course, has no reference to the class of cases provided for by section 321 of the Code, where the cause of action is assigned after the action is commenced.

The motion must therefore be denied, with costs.

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Bluebook (online)

14 Abb. Pr. 353, 23 How. Pr. 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-wright-nysupct-1862.

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