Bendernagle v. Cocks
New York Supreme Court
This was a motion that William S. Sears pay the cost of the reversal of a judgment obtained by Cocks against Bendernagle in the New-York common pleas, which was removed by Bendernagle into this court by Writ of error. The motion was founded upon the allegation that Sears was the real plaintiff in the suit in the C. P. and prosecuted it for his own benefit, although it was brought on a demand claimed to be due to Cocks ; and that the writ of error had been defended by him.
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This was a motion that William S. Sears pay the cost of the reversal of a judgment obtained by Cocks against Bendernagle in the New-York common pleas, which was removed by Bendernagle into this court by Writ of error. The motion was founded upon the allegation that Sears was the real plaintiff in the suit in the C. P. and prosecuted it for his own benefit, although it was brought on a demand claimed to be due to Cocks ; and that the writ of error had been defended by him. Sears denied that he was the beneficial owner of the demand prosecuted in the C. P. and alleged that both in the C. P. and…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
Assuming that Sears was the owner of the demand prosecuted in the common pleas, he succeeded in recovering a judgment in that court; had he failed, he would have been liable in that court to the defendant’s costs. In this court, instead of prosecuting he defended, and we have repeatedly held that a party defending a suit in the name of another, though himself the party in interest, is not liable to the costs of the action if the defence prove unsuccessful. We cannot regard the writ of error as such a continuation of the suit below as to place the defendant in error…
2Cited by3 opinions
- The Farmers' Loan and Trust Co. v. . KurschNew York Court of Appeals · 1851
- Peetsch v. QuinnNew York Court of Common Pleas · 1895
- Hallett v. HastieSupreme Court of Alabama · 1859