
    Wm. W. Badger, Resp’t, v. Wm. H. Appleton et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1887.)
    
    1. Security for costs—Remedy when judgment reversed on which MONEY WAS DRAWN FROM COURT, AND COLLECTED ON UNDERTAKING.
    Where one Newhall, a non-resident plaintiff, had deposited money in court as security for costs, and as further security had given an undertaking and on a judgment in defendants’ favor, they had drawn the amount from the court and had collected a further amount upon the undertaking and afterwards the judgment is reversed, the plaintiff is at liberty to apply for an order of restitution under which defendants would be compelled to refund the money received or to bring an action for money had and received. ,
    2. Same—Power of the court in case of insolvency.
    The court had the power, in case of the insolvency of Newhall or his inability to pay a judgment to make an order for the disposition and safe keeping of the money to await the final determination of the action.
    3. Same—Order permitting re-deposit no bar to assignee’s action for THE AMOUNTS.
    Where the assignee of Newhall brings an action for the money so obtained by the defendants and before issue joined, they obtain an order granting leave to them to deposit the two specific sums with the clerk of the court, the order, being merely permissive and not restraining Newhall from prosecuting his claim, is no bar to the action.
    The facts gathered from the evidence are, that one New-hall, the assignor of the plaintiff, in 1878, brought suit against the defendants, and upon the second trial of the action the defendants obtained a judgment for costs, and the clerk of the court paid over to them $500. That had been deposited by Newhall, a non-resident, as security for costs.
    Newhall having appealed from the judgment, he was obliged to give further security for costs, as a non-resident, and gave an undertaking. The general term affirmed the judgment, with costs, amounting to $113, which amount the surety paid, being reimbursed by Newhall.
    On appeal to the court of appeals, the judgment was reversed and new trial granted, and upon a new trial the plaintiff (Newhall) obtained judgment, from which defendants have appealed, but which has not yet been decided.
    Newhall, on August 24, 1886, assigned his claim to the moneys drawn from the court and collected from the surety by the defendants to this plaintiff, and on August 25 this action was commenced to recover the same.
    A motion was made by defendants August 26, and an order obtained September 4, by which they were “granted leave to pay the said sums of $500 and $113 to the clerk óf the court, to be retained until the determination of the action as security for costs on the part of the plaintiff (Newhall), as a non-resident,” etc., and the defendants set up these facts in their answer.
    Plaintiff obtained judgment in the city court, which was affirmed by the general term of that court, and from that judgment the defendants appeal to this court.- ' . -i
    
      Campbell & Paige, for appl’ts; William W. Badger, for resp’t.
   Van Hoesen, J.

The defendants Appleton drew from the clerk of the superior court the moneys that Newhall had deposited with him as security for costs, and collected also $113 from the surety who had signed an undertaking for costs that Newhall had been ordered to give, upon- Appleton’s application.

After the judgment in Appleton’s favor had been reversed by the court of appeals, Newhall was at liberty to apply to that court for an order of restitution, under which the Appletons would have been compelled to refund to him the moneys they had received from the clerk and collected upon the undertaking, or to bring an action against the Appletons for money had and received. The remedy by action, and the remedy by motion for restitution, are cumulative. Lott v. Swezey, 29 Barb., 87.

Newhall did not at once resort to either of those remedies. As the judgment of reversal provided that there should be a new trial, with costs to abide the event, he determined to wait till he had recovered a judgment in his favor before making an effort to compel the Appletons to repay to him the sums that they had collected as costs.

In time he succeeded in getting judgment against the Appletons, and then he demanded from them the return of the moneys that they had held in their hands for almost five-years. Of course, the Appletons were liable to pay interest, on those moneys, but their counsel devised a plan that it was hoped would save them from the payment of interest.

That plan was to re-pay to the clerk of the superior court the moneys they had drawn out, and also to lodge in his hands the money they had collected from Newhall’s surety, and then have the aggregate sum treated as if it had always been in the custody of the court. Accordingly the Appletons moved that leave be granted to them either to retain in their possession the moneys they had collected, or to pay those moneys to the clerk, to be by him retained till the final determination of the action, “as security for costs on the part of the plaintiff as a non-resident.”

' It was in the power of the superior court, in case of the insolvency of the appellant (Newhall), or his inability to pay the judgment in case the respondents (the Appletons) should be successful upon the new trial, to withhold the moneys collected to await the final determination of the action, and to make such order for their disposition and safe keeping meanwhile as it deemed proper. Marvin v. Brewster Iron Co., 56 N. Y., 670.

The only question here is, whether the superior court did exercise that power ? The order of the court is, “The defendants are hereby granted leave to pay said sum of $500 and $113 to the clerk of this court, to be retained by him until the final determination of this action, as security for costs on the part of the plaintiff as a non-resident, and that when so paid, the clerk of this court shall retain said sums, accordingly. ”

It appeared to the superior court that the Appletons had appealed from the judgment that Newhall had recovered against them, and that some litigation must be had before the action reached its end. The first inquiry is, what construction would the superior court have placed upon its own order if Newhall had applied for an order of restitution against the Appletons ?

Would it have held that the meaning of the order was that the money should be impounded till the appeal of the Appletons had been disposed of, and the action definitely decided; or would it have held that the order did not affect the rights and remedies of Newhall, because it merely granted to the Appletons, at their solicitation, permission to do an act that could not injure Newhall, that is, to pay into the clerk’s hands money that was not his, and which he made no claim to ?

I find in the language of the order nothing that restrains Newhall from prosecuting his claim for reimbursement, or adjudges that until the final determination of the action his right to reimbursement should be held in abeyance.

As respects the Appletons the order is merely permissive, for it did not command them to deposit the money with the clerk. As it imposed no obligation upon one party to the action, it is not likely that it was intended to take away the rights of the other. Surely it was not the intention of Judge Freedman to make Newhall’s right to reclaim his money depend upon the action that the Apple-tons might determine to adopt respecting the deposit of the money with the clerk.

Again, if Judge Freedman supposed that he was determining what the rights of Newhall were, it is highly improbable that he would have failed to require the Appletons to make provision for the payment of interest upon the money for the years that they had the use of it.

There is no doubt as to what the counsel for the Apple-tons intended to be the effect of the order, but there seems to me to be great doubt as to whether the court intended to do anything more than decide that there was no good reason why the money should not be placed in safe custody, and that as the rights of Newhall were not affected, he had no occasion to object to the order.

The intention of the court to deprive Newhall of his right of action, and his right to restitution, is not so clear as to warrant us in holding that the order of Judge Freedman is a bar to this action. We therefore affirm the judgment, with costs.

Daly, J.

I concur in the decision reached by Judge Van Hoesen, on the ground that the party who deposited the money and gave the undertaking as security for costs has recovered judgment in his favor, and is therefore entitled to an action for the moneys which his adversary had drawn out of court and collected on the undertaking in satisfaction of the judgment which he originally recovered.

If Newhall had merely secured a reversal of the latter judgment, he would have an action for the recovery of the money collected on the undertaking, but as to the money drawn out of court, he would be only entitled to an order that it be restored to abide the event of the action.  