Cunningham v. M'Gregor
The Superior Court of New York City
The plaintiff is an assignee, under an assignment executed to him by J. H. Sf J. D. Lyon, of their property, in trust to pay their creditors. As such assignee, he brought this action to recover a balance alleged to' be owing from the defendant to the assignors at the time of the assignment. The defendant obtained a report of a referee in his favor, and now moves for an order directing the costs to be paid by the plaintiff personally.
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The plaintiff is an assignee, under an assignment executed to him by J. H. Sf J. D. Lyon, of their property, in trust to pay their creditors. As such assignee, he brought this action to recover a balance alleged to' be owing from the defendant to the assignors at the time of the assignment. The defendant obtained a report of a referee in his favor, and now moves for an order directing the costs to be paid by the plaintiff personally. The assignors assured the plaintiff that the balance sought to be recovered was due from the defendant. Defendant’s affidavits state, (and this is not denied,)…
1Opinion of the Court
Bosworth, Justice.
The plaintiff is a trustee of an express trust. The Code puts such a trustee on the same footing as an executor or administrator, in respect to the costs of an action brought by or against him. Such a trustee necessarily prosecutes by virtue of his rights as trustee. (Code, §§ 111 and 113.) In such an action, if unsuccessful, the costs of the defendant can only be charged upon, or collected out of the estate he represents. (Code, § 317.)
The same rules must be applied to his case as are applied in actions necessarily brought by executors or administrators in their…
2Cited by6 opinions
- In re Carnegie Trust Co.Appellate Division of the Supreme Court of the State of New York · 1914
- Woodruff v. CookNew York Supreme Court · 1857
- Conger v. Hudson River RailroadThe Superior Court of New York City · 1858
- In re Bank of United StatesAppellate Division of the Supreme Court of the State of New York · 1932
- Barton v. HosnerNew York Supreme Court · 1880
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