#### Patrick J. Murtagh, Plaintiff, *v.*John J. Sullivan and St. Andrew’s Roman Catholic Church of Norwood, N. Y., Defendants.

(Supreme Court, Clinton Special Term,

December, 1911.)

Parties — Substitution — Time for making—After judgment.

Where during the pendency of an action to foreclose a mechanic’s lien the plaintiff is adjudged bankrupt and a trustee is appointed, but no application is made to substitute the trustee as plaintiff, and the action proceeds until judgment for costs is recovered by one of the defendants against the plaintiff, the trustee cannot thereafter be substituted on the plaintiff’s application in the place of the plaintiff in the judgment for costs.

Hotioh bv plaintiff to substitute Le Boy H. Bellas, as trustee in bankruptcy of the estate of Patrick J. Hurtagh, as plaintiff in the action.

B. W. Berry, for motion. •

Willis J. Fletcher, in opposition.

Kellogg, J. A., J.

This action is brought to foreclose a mechanic’s lien for balance due the plaintiff as subcontractor for services in building the church edifice of the defendant *518the St. Andrew’s Roman Catholic Church of Norwood, N. Y., erected under a contract between said church and the defendant John J. Sullivan.

The action has been terminated in favor of the plaintiff and against the defendant Sullivan, but adversely to the plaintiff in favor of the defendant the St. Andrew’s Roman Catholic Church.

As a result, the defendant the St. Andrew’s Roman Catholic Church obtained a judgment for costs against the plaintiff.

During the pendency of the action, 'the plaintiff was adjudicated a bankrupt, and one Le Roy M. Kellas was appointed his trustee.

. Upon a motion made after the rendition of the judgment against the defendant Sullivan in this action, the court substituted the trustee in place of the original plaintiff, Murtagh, so far as the judgment against that defendant was concerned^ holding that the cause of action had passed to the trustee by reason of the bankruptcy proceedings.

The plaintiff now moves, with the consent of the trustee, for the substitution in his place and stead of the latter, so far as the liability under the judgment for costs, obtained by the defendant St. Andrew’s Roman Catholic Church of Norwood, is concerned.

Section 75-6, which is in question, permits the action to be continued by the original party, unless the court directs the substitution of the real party in interest.

The plaintiff saw fit to permit the action to be continued to final judgment in his own name. If application had been made during the pendency of the action to substitute the trustee, the court would, undoubtedly, have imposed as a condition, that security for costs be given as required by section 3268 of the Code of Civil Procedure; and this may explain the reason why such application was not made during the pendency of the action. It was conceded upon the argument, although it does not appear from the motion papers, that during the trial before the referee a motion was made on behalf of the plaintiff, requesting the referee to substitute the trustee as a party in his stead. This procedure the defendant *519objected to, and very properly so, as the application could only be - made to the court, which had power to impose proper conditions for the protection of the defendant in case the relief was granted; and the application was denied by the referee.

There is much force in the suggestion that the court has neither constitutional nor statutory power after judgment to substitute, in place of a judgment debtor who may be solvent, a judgment debtor who may be insolvent, against the wishes of the judgment creditor.

But assuming, while not holding, that the court has such power of substitution, it should certainly not be exercised in this case on the application of the plaintiff, whose only object is to be relieved of the judgment for costs, substituting in his stead his trustee, the ability to collect from whom is very problematical.

There is no suggestion of a desire to appeal'in the matter, and the only purpose of the motion seems to avoid payment of a judgment propei’ly-obtained.

The attention of the court has been called by plaintiff’s counsel to the decision of Vieller v. Brown, 1 Law Bul. 49. In that case the trustee in bankruptcy.proposed to take an appeal, and himself made an application of substitution for that purpose. If such procedure was contemplated in this case, the application would be upon a somewhat different footing; and, if the court decided that it had power to grant the relief, it could; undoubtedly, impose as a condition the giving of such security as would amply protect the defendant in case the judgment appealed from should be affirmed, both as to the payment of costs of appeal and the original judgment.

The motion should be denied, with ten dollars costs.

Motion denied, -with ten dollars costs.