
    First General or Six Principle Baptist Soc. v. Loomis.
    
      (Supreme Court General Term, Fourth Department.
    
    July, 1888.)
    «Costs—Who Liable—Want or Authority to Sue.
    Persons who, without authority, and falsely alleging themselves to be the trustees of a religious corporation, institute an ejectment in the name of the corporation for lands in its possession, may be compelled by order to pay defendant’s taxable costs and disbursements, and an execution may be awarded pursuant to Code ■Civil Proc. N. T. § 779, providing for an execution for the costs of a motion on fail-lire to comply with an order directing their payment. Sections 3246, 3247, providing that in actions by or against trustees, etc., costs are exclusively chargeable ■upon the estate, etc., represented, unless the court directs them to be paid by the party personally, and providing for costs in case of transfer of the cause of action, etc., are in harmony with this power.
    Appeal from special term, Onondaga county.
    Action by the First General or Six Principle Baptist Society of Willett against Aaron B. Loomis as president of the Free Will Baptist Society of Willett. Defendant moved for an order charging W. B. Place, William Wightman, and Irving Bell with the payment of his costs and disbursements. The motion was denied, and defendant appeals. Code Civil Proc. N. Y. provides as follows: “Sec. 779. Where costs of a motion directed by an order to be paid are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within 10 days after the service of a copy of the order, an execution against the personal property only of the party required to pay. them may be issued in the same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions relating to real property, and all proceedings on the part of the property required to pay them, except to review or vacate the order, are stayed, without further direction of the court, until the-payment thereof. But the adverse party may, at his election, waive the stay of proceedings. Where the order directs that the costs of the motion abide the event of the action, or where costs of a motion awarded by an order have-not been collected, when final judgment is entered, they may be taxed as part of the costs of the action, or set off against costs awarded to the adverse party,, as the case requires. ” “See. 3246. In an action, brought by or against an ex- ■ ecutor or administrator, in his representative capacity, or the trustee of an. express trust, or a person expressly authorized by statute to sue or to be sued, costs must be awarded as in an action by or against a person prosecuting or defending in his own right, except as otherwise prescribed in sections 1835- and 1836 of this act, [relative to actions by and against executors and administrators,] but they are exclusively chargeable upon, and collectible from, the estate, fund, or person represented, unless the court directs them to be paid by the party personally, for mismanagement or bad faith in the prosecution or defense of the action.” “Sec. 3247. Where an action is brought in the name of another by a transferee of the cause of action, or by any other person who is beneficially interested therein, or where, after the commencement, of an action, the cause of action becomes, by transfer or otherwise, the property of a person not a party to the action,—the transferee or other person so interested is liable for costs in the like cases, and to the same extent, as if he was the plaintiff; and where costs are awarded against the plaintiff, the court may, by order, direct the person so liable to pay them. Except in a case where he could not have been lawfully directed to pay costs, personally, if he had been a party, as prescribed in the last section, his disobedience to the or-, der is a contempt of court. But this section does not apply to a case where the person so beneficially interested is the attorney or counsel for the plaintiff, if his only beneficial interest consists of a right to a portion of the sum or property recovered as compensation for his services in the action.”
    Argued before Hardin, P. J., and Follett and Martin, JJ.
    
      William J. Mantanye, for appellant. Franklin Pierce, for Place, Wight-man, and Bell.
   Follett, J.

Appeal from an order denying defendant’s motion for an order charging William It. Place, William Wightman, and Irving Bell with the-payment of the taxable costs and disbursements incurred by the defendant in this action.

The General or Six Principal Baptist Society of Willett is a corporation duly incorporated pursuant to section 3, c. 60, Laws 1813. Place, Wightman, and Bell, claiming to be the trustees of the corporation, began this action for the-recovery of real property, the church edifice and grounds. The action was-tried before a referee, who decided that when this action was begun and terminated the plaintiff was in possession of the property described in the complaint; that said promoters of the action were not the trustees of the corpora- • tion, and had no authority to begin or prosecute it; but that three other persons were the legal trustees of the corporation, under whose authority the-defendant acted.

Persons who prosecute an action in the name of another as plaintiff, with-■ out authority, are liable to the person so prosecuted for the damages sustained. Bond v. Chapin, 8 Metc. 31; Foster v. Dow, 29 Me. 442; Moulton v. Lowe. 32 Me. 466; Metcalf v. Alley, 2 Ired. 38. The only question involved in -this appeal is whether the wrongful promoters of an action can, after it has been terminated in the defendant’s favor, be compelled to pay his taxable costs and disbursements by an order. In Butterworth v. Stagg, 2 Johns. Gas. 291, an attachment to collect the costs was issued against the person who wrongfully brought the action. This case was approved in Giles v. Halbert, 12 N. Y. 32, 38, and it was said that such conduct is punishable as a contempt. In Jobbitt v. Giles, 22 Hun, 274, it was held that a person bringing an action ■for a penalty in the name of the overseer of the poor, without having made a .complaint as required by statute, could be required by an order to pay the .costs of the action. In Baptist Church v. Parker, 36 Barb. 171, four persons, claiming to be the trustees of the plaintiff, brought the action without authority, and it was dismissed, with costs against such persons. Our attention has not been called to any case questioning or statute limiting the power which has been so long exercised. Sections 3246 and 3247 of the Code of Civil Procedure are in harmony with the exercise of this power.

The order should be reversed, with $10 costs and printing disbursements, and the motion granted, and execution awarded pursuant to section 779 of •the Code of Civil Procedure, with $10 costs. All concur.  