Opinion
May 1, 1908.
Aaron W. Levy, for the appellant.
Albert Van Winkle [ Edward C. Lunt with him on the brief], for the respondent.
It appears that the respondent Liebmann recovered a judgment against one Louisa Schlaitzer, upon which he instituted proceedings supplementary to execution, examined the judgment debtor and procured the appointment of the plaintiff in this action as receiver of her property; that thereafter, at the request of Liebmann, the plaintiff as such receiver brought this action for an alleged conversion by the defendant of the personal property of the judgment debtor, upon the trial of which the defendant had judgment upon all of the issues and for $108.85 costs; execution was issued upon such judgment and returned unsatisfied; the time within which the plaintiff might have appealed has expired, and no appeal has been perfected. The respondent was beneficially interested in the cause of action, which was prosecuted solely for his benefit. The plaintiff is insolvent, and the costs have not been paid. These facts are not controverted, and the appellant was entitled to the relief prayed for. (Code Civ. Proc. § 3247; Ward v. Roy, 69 N.Y. 96; Droege v. Baxter, 77 App. Div. 78; Slauson v. Watkins, 95 N.Y. 369.)
We are not impressed with the contention that the order was discretionary and that the learned justice at Special Term exercised this discretion properly. 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), and the court is without discretion to relieve him of this absolute statutory liability. Although the language of the section is that where costs are awarded against the plaintiff "the court may, by order, direct the person so liable to pay them," we think that under the rules of law that where a statute directs the doing of a thing for the sake of justice the word "may" means the same thing as the word "shall" ( People ex rel. Otsego County Bank v. Supervisors of Otsego County, 51 N.Y. 401), and that if it is obvious that the Legislature intended to impose a positive duty the language used has an imperative signification and is to be so construed ( Livingston v. Tanner, 14 N.Y. 64), and the rule declared in Wuesthoff v. Germania Life Ins. Co. (107 id. 580) that "the intention of the Legislature is the cardinal consideration in the construction of statutes, and whether a particular provision is mandatory or directory is to be determined from the language used and the purpose in view," the provision of the Code under consideration is mandatory. Absolute liability of the beneficially interested person for costs being created, it becomes the duty of the court to enforce such liability by granting the order intended to accomplish such result.
The order must be reversed, with costs, and the motion granted, with costs.
WOODWARD, JENKS, HOOKER and GAYNOR, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.