his wife (Finley v. Jones, 6 Barb. 229). A trustee, &c., must sue as such in order to avoid personal liability for costs; for, if he sues in his own right and is defeated, he must pay costs, and no order is necessary to charge him personally (Murray v. Hendrickson, 6 Abb. 96; 1 Bosw. 635; Carnahan v. Pond, 15 Abb. 194). And a receiver who sues without leave of the court and is defeated, will, as a general rule, be held personally liable for the costs (Smith v. Woodruff, 6 Abb. 65; Phelps v. Cole, 3 Code Rep. 157; Cumming v. Egerton, 9 Bosw. 684).

a. Where the complaint alleges a contract made with the plaintiffs, as trustees, for the benefit of the trust, the designation of the plaintiffs is not to be regarded as mere matter of description, but as showing that they sue in their representative capacity (id.) Where the plaintiff, a trustee for the benefit of creditors, sued on a note for the benefit of the estate, but withont alluding in the complaint to his representative character, he having failed in the action, was held to be personally liable for the costs (Murray v. Hendrickson, 6 Abb. 96; 1 Bosw. 635).

b. No judgment for costs against an executor, &c., or trustee of express trust personally, can in any case be entered, unless, nor until the court so order. Such order is to be obtained by motion on notice (Slocum v. Barry, 38 N. Y. 46; 4 Abb. N. S. 399; Woodruff v. Cook, 14 How. 481; Devendorf v. Dickenson, 21 How. 275; Marsh v. Hussey, 4 Bosw. 614; Olmstead v. Vredenburgh, 10 How. ante, p. 215; 428, h). Trustees of school districts, defending in good faith acts done in virtue or under color of their office, are entitled to a certificate of having acted in good faith (Clarke v. Tunnicliffe, 5 Trans. App. 268), and on receiving such certificate are not liable for costs (id.)

c. An executor or administrator suing as such, is personally liable for costs in any action not necessarily prosecuted in his representative character. And those actions only are necessarily prosecuted in his representative character, where his testator or intestate had a complete cause of action in his lifetime (Woodruff v. Cook, 14 How. 481).

d. Where a plaintiff sues as assignee, or trustee of an express trust, and the court holds the instrument under which he claims void, and that he is not in fact assignee or trustee, he cannot claim any exemption from costs under this section (Sibell v. Remsen, 30 Barb. 441).

e. The provision as to mismanagement and bad faith should be confined to cases of mismanagement or bad faith on the part of the plaintiff in commencing the action, and not extended to his conduct in the management of his trust (Kimberly, Rec'r, &c. v. Stewart, 22 How. 281; Kimberly v. Blackford, 22 How. 443).

f. A receiver having appealed from the decision at special term, and failed, is no evidence of mismanagement or bad faith, nor is the fact of his having paid a subsequent judgment any such evidence (Devendorf v. Dickinson, 21 How. 275).

g. Facts other than those appearing on the trial are proper to be considered in determining whether costs shall be recovered against executors or administrators (Mercereau v. Ryerss, 12 How. 301).

h. A motion to compel a receiver to pay a judgment for costs recovered against him, should not be made until after an order that he pay such costs personally (Devendorf v. Dickinson, 21 How. 275).

i. An order denying a motion to set aside an execution for costs against plaintiffs personally, where such plaintiffs claim to act as trustees, is appealable (Slocum v. Barry, 34 How. 320).

j. An order denying a motion that a receiver plaintiff pay costs, is appealable to the general term (Columbia Ins. Co. v. Stevens, 4 Abb. N. §. 122; 35 How. 101).

k. Where a receiver in supplementary proceedings, by direction or leave of the court, brings a suit to set aside conveyances made by the judgment debtor, and fails, the judgment creditor, on whose application the receiver was ap

pointed, is not liable for the costs (Cutter v. Reilly, 31 How. 472; 5 Rob. 637; Wheeler v. Wright, 14 Abb. 353).

See ante p. 510 b. and see § 321.

a. Real estate-costs against executors.-Costs awarded against executors can in no event be a charge on real estate in the hands of an heir (Sanford v. Granger, 12 Barb. 392).

b. Security for costs, when not required.-Security will not be required of an assignee who brings an action to recover possession of property, which has been seized on an attachment at the suit of the creditor of the assignor, on an allegation that the assignment is a fraud upon creditors, and the assignee is a party to the fraud, unless there be such evidence of the truth of the allegation as renders it highly probable that the allegation is in accordance with the facts of the case (Shepherd v. Burt, 3 Duer, 645). Nor of an executor, administrator, or trustee, merely upon the ground that the estate which he represents is insolvent (Darby v. Condit, 1 Duer, 599). Unless it also appears that the plaintiff is himself insolvent (id.) Where bad faith in a receiver in commencing the action is shown, he will be required to give security for costs. Security ordered (Kimberly v. Goodrich, 22 How. 424). An ex parte order giving a receiver leave to sue, is not a bar to a motion requiring the receiver to give security for costs (Bolles v. Duff, 17 Abb. 448). An order requiring a receiver to give security for costs is not appealable (id.) See in note to § 303, Security for costs, ante, p. 483 d.

§ 318. (Am'd 1862.) Costs on review of a decision of an inferior court in a special proceeding.

When the decision of a court of inferior jurisdiction in a special proceeding, including appeals from surrogates' courts, shall be brought before the supreme court for review, such proceedings shall, for all purposes of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case.

c. A summary proceeding to compel a party to support a relative, brought by certiorari from the court of sessions to the supreme court for review, is within this section (Haviland v. White, 7 How. 154).

d. No costs can be allowed on a common law certiorari (The People v. B'd of Police, 39 N. Y. 506); but an appeal from a decision on such a certiorari being a special proceeding, costs are allowable on such appeal (The People v. Van Alstyne, 3 Keyes, 35). Where the general term, on a common law certiorari, reversed a decision of a county judge and referees upon the question of laying out a private road, without any direction as to costs,-held that a judgment for costs entered without order was irregular (The People v. Robinson, 25 How. 345).

See Laws 1854, p. 593, § 3, as to costs on appeal in special proceedings, in note to § 349, post.

§ 319. Costs in actions by the people.

In all civil actions prosecuted in the name of the people of this State, by an officer duly authorized for that purpose, the people shall be liable for costs in the same cases and to the same extent as private parties. If a private person be joined with the

people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued therefor against such private party and returned unsatisfied.

§ 320. Costs in actions by the people.

In an action, prosecuted in the name of the people of this State, for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation, or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the people.

a. In suits instituted by the district attorney of a county, in the name of the people, under the Metropolitan Police Act, for selling intoxicating liquors on Sunday, if the defendants succeed, the people, are liable for costs (The People v. Staats, 17 How. 10).

§ 321. Costs against assignee of cause of action, after action brought.

In actions in which the cause of action shall, by assignment after the commencement of the action, or. in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attach

ment.

b. If an action be 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, such assignee or person will be liable for costs in the same cases, and to the same extent in which the plaintiff would be liable (2 R. S. 619, § 44), [and the payment of such costs may be enforced by attachment (id.); and this power of the court is not taken away by laws of 1847, ch. 290, § 2 (Giles v. Halbert, 12 N. Y. 32]; (1 Hill, 629; 18 Wend. 672; 10 id. 622; see Evans v. Rees, 1 Dowl. N. S. 338; 1 Gale and D. 579; 1 Ad. and Ell. N. S. 579). Such assignee or person, also, is bound to indemnify the plaintiff on record, and will be directed to pay the costs, on his application (20 Wend. 630; 7 ib. 497). If the party in interest, however, succeed in the action, and the defendant sues out a writ of error, and the judgment is reversed, the former is not liable for the costs of the reversal (19 b. 151; and see 11 Abb. 259).

c. An assignee is liable to the defendant for costs, although the assignment is made pending the suit, if he afterwards proceed in the action (5 Cow. 17; Carnahan v. Pond, 15 Abb. 194; Columbia Ins. Co. v. Stevens, 37 N. Y. 536). and in such a case he takes the demand cum onere, and is liable for the costs which had accrued before as well as those which may arise after the assignment (10 Wend. 622; 20 id. 630; Creighton v. Ingersoll, 20 Barb. 541). Where the plaintiff, pending the action, made a general assignment to trustees for the benefit of creditors, and the cause was afterwards tried and the defendant had judgment, the assignee not having intermeddled with the prosecution,-held

that they were not liable for the defendant's costs (Taylor v. Bolmer, 2 Denio, 193).

a. Where a real plaintiff prosecuted a suit against the defendant for a penalty, by virtue of a parol agreement to divide the amount, if successful, with the nominal plaintiff on record, and the defendant succeeded,-held that the real plaintiff was liable for the defendant's costs (Giles v. Halbert, 12 N. Y. 32).

b. A person interested by way of mortgage or lien, and who prosecutes the suit, is subject to the costs (1 Hill, 629; 15 Abb. 194). So he is liable, although an assignee of only a part of a demand (1 Denio, 656). But an assignment of an interest in a demand as collateral to a debt, the assignor continuing the prosecution of the suit and remaining liable for the debt until paid, does not render such assignee liable for costs (Wolcott v. Holcomb, 31 N. Y. 125).

c. A landlord, or other person, who is entitled by statute to be substituted in the place of, or joined with, the defendant in an ejectment suit, who without causing himself to be made a party, defends such suit unsuccessfully in the name of the original defendant, will be ordered to pay the costs of the plaintiff, after the execution against the defendant on the record has been returned unsatisfied (Farmers' Loan and Trust Co. v. Kursch, 5 N. Y. 558).

d. Where, pending an action, the cause of it becomes the property of another, not a party to the action, the test of such person's liability for costs under § 321 is, would he have been liable if he had brought the action (Conger v. Hudson R. R. R. Co. 7 Abb. 255). Stay of action by assignee until costs of prior action by his assignor paid, see 27 How. 155.

e. On a motion to charge with costs an assignee not a party to the suit, the moving party holds the affirmative and is bound to make out a satisfactory case (Wolcott v. Holcomb, 31 N. Y. 125).

$322. Costs on a settlement.

Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that sec

tion.

f. Costs on settlement.-Excess of costs paid to an attorney on the settlement of an action, may be recovered by action-it is not a voluntary payment (Britton v. Frink, 4 How. 144).

g. Payment after action commenced.-After action commenced, the defendant cannot oblige the plaintiff to accept in satisfaction, the demand without costs (Rockefellow v. Wiederwax, 3 How. 382). Where a defendant after suit brought, called at the plaintiffs' store, and in their absence paid to a clerk, who was ignorant that a suit had been brought, the amount claimed in the complaint, but without costs,-held that the plaintiffs were, notwithstanding, entitled to costs, and it seems that if the defendants refuse to pay the costs, the plaintiffs may proceed in the action (Bogardus v. Richtmeyer, 3 Abb. 179). [Perhaps to justify proceedings with the action, the amount paid should be repaid or tendered to defendant.] (See 1 Parsons, contra, 231, note; and see Hull v. Peters, 7 Barb. 331). A defendant may, pending the action, satisfy the plaintiff's claim, and then set up such satisfaction in his answer (Willis v. Chipp, 9 How. 568).

h. Several defendants.-In an action against several defendants defending separately, if the plaintiff settles with one or some of the defendants, without the concurrence of the other or others, he is liable to such other or others for the costs of the defense (9 Wend. 435).

¿. Discontinuance of course on payment of costs.-It is a matter of course, except in the cases after mentioned, to permit a plaintiff to

enter an order to discontinue on payment of costs, at any time before an interlocutory or final decree has been made (Averill v. Patterson, 10 N. Y. 500; Schenck v. Fancher, 14 How. 95; Burnett v. Westfall, 16 id. 430; Cooke v. Beach, 25 id. 356; and see 2 Johns. Ch. Rep. 478; 1 Ves. jun. 401). But an order for the purpose is necessary in all cases; a notice will not suffice (id.; Morrison v. Ide, 4 How. 304; Bedell v. Powell, 13 Barb. 183; Moffatt v. Ford, 14 Barb. 577; Weigan v. Held, 3 Abb. 462; Bishop v. Bishop, 7 Rob. 194). Á plaintiff cannot have an order in any case to discontinue without costs, unless upon a motion on notice to all the defendants who have appeared. An ex parte order to discontinue is, therefore, always upon the condition of payment of costs (Pignolet v. Daveau, 2 Hilton, 584). The order is nugatory unless the costs are paid (Averill v. Patterson, 10 N. Y. 500). The order for leave to discontinue on payment of costs, is not, per se, a stay of proceedings (Beeton v. Jupp, 15 M & W. 149; 15 Law Jour. Ex. 120); nor is the action discontinued until the costs are paid (Jennings v. Fay, 1 Code Rep. N. S. 231). If the costs are not paid, defendant may proceed or ask to have the action dismissed if not prosecuted, but he cannot enter a judgment for costs (Hicks v. Brennan, 10 Abb. 304, 420). Where the complainant obtains the usual order to discontinue, upon payment of costs, the defendant may apply to the court to enforce the payment, or if the costs are not paid after a demand, he may consider the action as still in court, and may plead its pendency as a defense to a subsequent action, or apply to the court to stay proceedings in the second suit, until the costs of the first are paid (Cummins v. Bennett, 8 Paige, 81; and to the like effect is Simpson v. Brewster, 9 id. 245; Saxton v. Stowell, 11 id. 526).

a. A creditor's suit, by plaintiffs on behalf of themselves and others, may be discontinued by plaintiffs of course, on payment of costs (Houseman v. Rosenfield, 18 Abb. 379).

b. Semble, after a defendant has been arrested at the commencement of the action and moved to vacate the order of arrest, the plaintiff cannot discontinue of course without paying the costs of the motion to vacate (Crockett v. Smith, 14 Abb. 62); after an order for a new trial at general term, plaintiff will not be allowed to discontinue while the amount of the costs is in dispute and unpaid (North v. Sargeant, 14 Abb. 224).

c. Where the plaintiff's attorney procures from the defendant personally, a consent that plaintiff may discontinue, and gives no notice of such consent to the defendant's attorney, and suffers him to proceed in the action, the plaintiff cannot discontinue without paying the defendant's attorney his costs subse quent to obtaining such consent to discontinue (Pilger v. Gore, 21 How. 155; 12 Abb. 244).

d. If before the service of an order allowing a party to discontinue on payment of costs, the adverse party has noticed the cause for trial, such adverse party is entitled, as a part of the costs on the discontinuance, to the fee for proceedings subsequent to notice of trial (Hall v. Lindo, 8 Abb. 341).

e. Discontinuance before notice of retainer.—Although an attorney has been actually employed, if no notice of retainer has been served, the plaintiff may discontinue without payment of costs (Schenck v. Fancher, 14 How. 95; Hull v. Peters, 7 Barb. 331; Knight v. Beach, 7 Abb. N. S. 249; overruling Foster v. Bowen, 1 Code Rep. N. S. 236; see Bedell v. Powell, 13 Barb. 183).

ƒ. Discontinuance without costs.-Where one suing in autre droit has commenced a wrong suit by mistake, or has ascertained that it would be useless to proceed in consequence of facts subsequently discovered, he will be permitted to discontinue without the payment of costs (Arnoux V. Steinbrenner, 1 Paige, 82; see Reeder v. Seeley, Cow. 548; and Phonix v. Hill, 3 Johns. 249; St. John v. Denison, 9 How. 345). But a plaintiff who is not an executor or administrator [or it is presumed a trustee] will rarely be allowed to discontinue without payment of costs, not even if it should appear that he would be entitled to a judgment if he proceeded in the action (Lewis v. Ger