#### Joseph A. Cutter, receiver, &c. plaintiff, *vs.*Peter Reilly *et al.*defendants.

1. Where, in an action brought by a receiver appointed in supplementary proceedings, to set aside a conveyance of real estate 'made by the judgment debtor, to a third person, the defendant succeeds on the trial, the judgment creditors of the debtor, who are not parties to the action, and took no part in its prosecution, are not liable for the *costs*of such action.

2. The law making parties in interest liable for costs was not intended to apply to actions brought in the name of sheriffs, receivers, clerks or other officers of the court; although third parties might be interested in the recovery; unless the action was brought on the sole suggestion and urgency of such parties, and was virtually conducted by them; especially if the action be brought by direction of a court.

(Before Robertson, Ch. J.

at special term, August —, 1866.)

An action was commenced on or about the month of January, 1863, by the above named plaintiff, as receiver of all the property of Peter Reilly, one of the above named defendants. The plaintiff, Joseph A. Cutter, was appointed such receiver in proceedings supplementary to execution, had in a certain action wherein Peter Woods and John Woods were plaintiffs and Peter Reilly was defendant, and wherein a judgment in favor of said Peter Woods and John Woods, and against the said Peter Reilly had been entered, for $91.09. The above entitled action was brought to set aside certain conveyances of real estate made by the said Peter Reilly, as fraudulent and void, as against creditors. At the time of bringing the action, the said Peter Woods and John Woods were judgment creditors of said Peter Reilly, and it was alleged that they were beneficially interested in any recovery which might be had in said action. The action was tried before Justice McCunn, in January, 1864, who found for the defendants herein, dismissing the complaint with costs against the plaintiff, and deciding that said conveyances were not fraudulent and void as against creditors; The defendants’ attorney, upon notice to the *638plaintiff, caused the costs of the defendants herein to be taxed at $50.65, and a judgment therefor to be duly entered with the clerk of this court, and a transcript to be filed and docketed with the clerk of the city and county of New York. On or about the 7th of August, 1866, an execution was issued upon said judgment to the sheriff of the city and county of New York, for the collection thereof, which execution was subsequently returned by the sheriff unsatisfied, for want of property of the defendants to satisfy the same.

Upon a statement of these factSj an order was made by Justice Barbour, on the 27th of August, 1866, requiring said Peter Woods and John Woods, creditors as aforesaid, ' to show cause at a special term of this court on the 30th-day of August, 1866, why they and each of them should not be made liable for the costs recovered as aforesaid, against the plaintiff, and the payment of the same enforced by attachment, together with the costs of the motion, &c.

*D. M. Porter,*for the plaintiff.

*8.*Tuttle, for the defendants

Robertson, Ch. J.

This is a motion to compel judgment creditors to pay the costs of the defense of a suit brought by a receiver appointed in a supplementary proceeding taken by them on execution against a judgment debtor. The Code (§ 321) provides that a person of ^hom a cause of action shall become the property after the commencement of an action upon it, shall be liable for the costs, in like manner as if a party; and thé Revised" Statutes *(vol.*2, *p.*619, § 44,) and the Laws of 1849, *(chap.*390,) provide that a person *“beneficially interested”*in the recovery in an action *brought in the name of another,*shall be as much liable for costs as a plaintiff.

In the case of *Whitney*v. *Cooper,*(1 *Hill,*632) it was held that persons holding a mortgage or lien were included in *639such definition. It was also held, therein, that an action might be brought by a person so as to charge him with its costs by retaining an attorney, directly or indirectly, or engaging to pay his expenses, but it must be by some positive action. In *Colvard*v. Oliver, (7 *Wend.*497,) it was held that a *cestui que trust*came within the statute. In the case first cited, however, the court consider the statute as intended to cover all cases where the interest of the party sought to be charged would be protected against the nominal assignee". In the case of *Miller*v. *Franklin,*(20 *Wend.*630,) it was held that a person, to whom a verdict had been assigned as collateral security, was not liable for any costs; and (as the court strongly intimate) not even if he had taken part in the prosecution. In *Bliss*v. *Otis,*(1 *Denio,*656,) and *Giles*v. *Halbert,*(2 *Kern.*32,) it was held that an interest to any extent in a recovery, accompanied by interference and management of the • suit, made the party interfering liable.

There is no evidence in this case of any interference by the. judgment creditors in the suit, either by directing it to be brought or subsequently taking any active part in, or management of, it. This alone would be sufficient to exempt them from liability as having *brought it,*particularly as they were not the only parties interested. The receiver had an interest in his commissions and costs, and was liable to any other parties for their share of any of the proceeds of any judgment.

But I think the law was not intended to apply to cases of actions brought in the names of sheriffs, receivers, clerks or other officers of the court, although third parties might be interested in the recovery; unless the action was brought at the sole suggestion and urgency of such parties and was virtually conducted by them. Especially where an action was brought by direction or leave of the court. The case of *Wheeler*v. *Wright,*(23 *How. Pr.*228,) is directly in point, and must govern this case.

Motion denied, with $7 costs.