
    CITY COURT OF NEW YORK.
    Alexander Frazer agt. Charles E. Ward.
    
      Security for costs — Money deposited m lieu of an undertaking, as security for costs — Not liable to seizure on other judgments.
    
    A deposit as security for costs must be regarded, for all the purposes of the action, as the property of the person making the deposit. But where the action results favorably to the plaintiff, and the litigation is terminated, the deposit is not liable to seizure on other judgments if the money, in fact, belongs to other persons who made the deposit, subject only to the contingency stated.
    
      Special Term, May, 1885.
    The plaintiff brought an action in this court against the defendant herein to recover $800. The trial eventuated in a verdict for the defendant, on which judgment was entered against the plaintiff for $270.64 costs. This judgment proceeded upon the sole ground that the action had been prematurely brought. After the claim became due, according to this determination, the plaintiff brought the present action for the same cause, and on the 8th of Hay, 1885, succeeded in recovering a judgment against the defendant for the entire amount of his demand and interest, viz., $896. In the present action the plaintiff, who had become a non-resident, deposited, under an order of the court and in lieu of an undertaking, $250 as security for costs. On the 10th of April, 1885, an order founded on the first judgment was granted by judge Hawes, requiring John Beid, the clerk of the city court, to appear and be examined in regard to property said to be in his hands belonging to the judgment debtor; the object of the proceeding, as subsequently developed, being to reach and apply on the first judgment in favor of the defendant the money deposited by the plaintiff as security for costs in the present action. Upon the examination of Mr. Beid, he testified that he held $250 under the aforesaid circumstances. An order was thereupon made on the 13th of April, 1885, requiring Mr. Beid to pay over the deposit to the defendant’s attorney, and it was paid over accordingly. The proceedings to obtain this application of the deposit were ex parte, but are not on that account irregular. The plaintiff now moves to set aside the order directing the payment over of the money, and for a direction that the defendant’s attorney restore the deposit. The application is founded on an affidavit made by Ezra A. Tuttle, one of the plaintiff’s attorneys, in which he swears that, pursuant to the order requiring security for costs, or a deposit in lieu thereof, and not otherwise, “ and for the purpose expressed in said order, deponent deposited on the 8th day of April, 1885, the sum of $250 with the clerk of this coxxrt; that said money was deposited in the name of ‘ Tuttle & Goodell, attorneys for the plaintiff,’ and a receipt therefore was taken by deponent; that said money was not the property of the plaintiff, nor was it deposited to the credit of the plaintiff, nor in any manner subject to his control, but was the property of said Tuttle & Goodell, and was deposited and placed in the custody of the coxxrt for the purpose specified in said ordei', and for no other purpose.” The question presented is whether the money deposited under these circumstances became the property of the defendant only for the limited purposes specified in the order, or generally for all purposes.
    
      
      Flanders & Tuttle, for motion.
    
      E. P. Wilder, opposed.
   McAdam, C. J.

Except in the instance provided in sec tion 586 of the Code, a deposit in lieu of bail must be regarded for all the purposes of the action as the property of the party on whose behalf the deposit is made (8 Abb. [N. S.], 155 ; 45 N. Y., 393). Such money, although in custodia legis, may be attached subject to the contingency on which the deposit was made (74 N. Y, 145; 83 N. Y., at p. 237). If the deposit is to be regarded for all purposes as the money of the plaintiff, it follows that the order to pay over was legally made; for, assuming the money belonged to the plaintiff herein, the only persons who could object to the application made of it were the plaintiff and the defendant. The order to pay over having been made on the application of the defendant, concluded him as to its distribution, and it likewise concluded the plaintiff, because it was founded on a legal proceeding against him. It would not ordinarily prejudice the plaintiff’s attorneys on the question of liability for costs, because the order requiring security was made and complied with. So that, but for the question of title in the attorneys, which will next be considered, there can be no doubt of the right of the defendant to do what he did. The contingency on which the deposit was made has happened. The plaintiff recovered a judgment, and by force of it the plaintiff became entitled to the return of his deposit. The deposit has answered all the purposes for which it was made, and the requirements of the law have been fully satisfied. But the difficulty which arises is that the money deposited up till the time of the deposit belonged to the plaintiff’s attorneys. For the purpose of securing the defendant against the costs of the present action, the money deposited was to be deemed the property of the plaintiff. But when it was demonstrated by the result of the action that the defendant was not entitled to costs, and no longer needed the required indemnity, the deposit ceased to be security, and the plaintiff’s attorneys, as the true owners of the fund, became entitled to a return of their money. In other words, it seems to me that an attorney for a plaintiff may consent to deposit his own money as security for costs to which his client may become liable in a particular action, with the risk that if the plaintiff therein is defeated the money for the purpose of satisfying the costs recovered by the defendant is to be regarded as the property of the plaintiff. I think he risks no more. The law is satisfied with this construction of the liability assumed, and the defendant proceeded against by the non-resident plaintiff is fully protected by it. If this be so, the result would seem to follow, that after it has been judicially determined that the defendant cannot by any possibility recover costs in the action, that the money should go back to the source from which it emanated, and to the parties to whom it equitably belongs. The identity of the money was not destroyed, but preserved. The identical money which the plaintiff’s attorneys deposited remained in the hands of the clerk until he was ordered to pay it over. There is no proof that it was loaned to the plaintiff, or was ever in his possession. It was deposited by the plaintiff’s attorneys for a special purpose and at a specified risk, and when the object of the deposit was satisfied, and the risk ceased, their ■right to its return became complete. The plaintiff does not question their right to it. The deposit was made in lieu of an undertaking, and subject only to the risk which sureties upon an undertaking would have assumed if an undertaking had been given. Because money was deposited in lieu of an undertaking there is no reason why friendly depositors, who furnished the money instead of writings, should be subjected to greater risk, or liability to loss, than if they had subscribed the usual undertaking with which the law is satisfied. Under the circumstances the conclusion seems inevitable that the deposit must be restored to the clerk of the court, there to remain subject to such application as may be made in respect thereto, as the parties interested therein may be advised.

Ho costs.  