
    EAGLESON a. CLARK.
    
      New York Common Pleas; General Term,
    December, 1855.
    Costs — Defendaiit Released from.
    A defendant who is indifferent between the real contending parties, who shows himself ready to pay to whomsoever is entitled, and who creates no costs by his own act or defence, should be protected against the expenses of litigation.
    Appeal from an order at special term denying a motion to relieve defendant from the payment of costs included in a judgment recovered against him and another, by the plaintiff.
    
      T. J. Glover, for appellant.
    
      Alex. Kinsherdt, for respondent,
    contended that the defendant had become charged with costs in consequence of his own neglect to pay money into court, and was therefore entitled to no relief.
   Woodruff, J.

I cannot resist the conviction that the defendant Clark ought not to be charged with the costs of the present litigation.

The plaintiff having filed a notice to create a lien upon the property of Clark under the act for the security of mechanics, &c., the latter retained in his hands the amount claimed by the plaintiff, and when the foreclosure was commenced interposed no obstacle to the collection of the money, but suffered a default.

By request of Farley, the contractor, the plaintiff consented that he might come in and defend -the claim, and that he be made a party defendant. This being done, the plaintiff and Farley have since been engaged in a protracted litigation to determine in effect which of the two last named are entitled to the money in the hands of Clark. In respect to this litigation Clark has been in the situation of a mere stakeholder, wholly indifferent between those parties, and doing nothing to prevent the plaintiffs’ recovery. A person so situated would, under the general princijdes governing courts of equity, have been enti-tied to interplead the two adverse claimants, and so far from being charged with costs, would have been permitted to reserve his costs of interpleading the others out of the fund. It is true that under the former system he would have been required to commence the proceeding and bring the money into court if he would entitle himself to costs. But it seems to me in accordance with the most obvious equity that a defendant who is indifferent between the contending parties, ready to pay to whomsoever is entitled — creates no costs by his own act or defence, should be protected against the expenses of a litigation to which he has not been a party, in which the respective claimants have voluntarily engaged to settle their own rights. It was not at his instance that Farley was made a defendant, and let in to set up a defence — and although it is probable that if the application had been made by Farley to the court, the order to make him a defendant would have been made, yet if plaintiff had shown any sufficient reason therefor (as insolvency by Farley for example) doubtless the court would have required him to give security to pay the costs of the litigation if his de-fence should prove unfounded. If neither Clark nor the plaintiff desired his introduction, such a condition would have been quite reasonable if his solvency was questionable.

It is urged that Clark might have ¡naid the money to the county clerk in discharge of the lien, and not having done so he is in fault, and ought to be charged with costs. If the costs were in any degree caused by the failure of Clark to make such payment, or the plaintiff was injured by such omission, there would be plausibility in the suggestion. But that is not so; had he paid in the money, it would have been a mere substitution of the money for the premises which were subject to the lien. The litigation must have continued in precisely the same manner. It was his privilege to discharge the lien on his premises if he desired to do so for his own convenience, but the litigation is not affected thereby. The plaintiff has not been kept out of his money by this omission, and he has the lien which the statute gives him upon the premises affected thereby.

The statute of 1855 authorizes the court to award costs as may be just, and to my mind it is clearly just and equitable that the plaintiff should have judgment against Farley for the whole amount reported due and costs. That the claim for the amount reported due, $335 35, with the costs of the default and judgment thereon, should be declared to constitute a specific lien upon the premises, and the judgment should direct a sale of the right, title, and interest of the defendant Clark therein on the day of the filing the notice with the county clerk, to raise that sum, and that the proceeds of sale to that extent should be applied to the satisfaction of the plaintiff’s judgment, and that the plaintiff have execution against Farley for the deficiency (if any) and the residue of such judgment.  