Opinion
March 20, 1914.
Julius B. Baer, for the appellant.
J.A. Seidman, for the respondents.
The present three plaintiffs are the assignee in bankruptcy joined with two prior assignees of the cause of action under an assignment before the bankruptcy. These prior assignees, Messrs. Engesser and Abramson, according to the affidavits filed in the New York county action, were beneficially interested in that suit. The judgment in that action for costs, having been recovered after the trustee's appointment, could not be here offset. ( Knight v. Rothschild, 132 App. Div. 274, 278.) There is, therefore, a good ground to stay the present suit until the previous judgment for costs shall be paid. ( Genet v. Davenport, 58 N.Y. 607; Barton v. Speis, 73 id. 133; Behrens v. Sturges, 138 App. Div. 537.) Whether or not the assignee in bankruptcy could be charged personally with these costs is not now involved. The real question is whether by bringing a second suit in this county the plaintiffs can escape liability for the costs imposed in the original suit, in which the trustee and the two other plaintiffs actively and beneficially participated. As was held in Nelligan v. Groth ( 126 App. Div. 444), the liability of the person beneficially interested for costs "is absolute, and to the same extent as if he was the plaintiff." (Code Civ. Proc. § 3247.) Defendant has, therefore, a right to have the costs of the original suit paid him before he can be put to the trouble and expense of defending another action for the same cause.
The order appealed from is reversed, with ten dollars costs and disbursements, and defendant's motion for a stay granted, with ten dollars costs.
JENKS, P.J., BURR, THOMAS, CARR and PUTNAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and defendant's motion for a stay granted, with ten dollars costs.