
    EDWARD LYON, as Receiver, &c., v. EDWARD F. WILDER, Impleaded, &c., Respondent.
    
      Security for costs—deposit by surety to avoid justification, when deemed property of plaintiff.
    
    Plaintiff having been ordered to furnish security for the costs of one of the defendants, filed an undertaking for that purpose. Thereafter, one of the sureties, to avoid justification, caused to be deposited in court the amount mentioned in the order, and the clerk gave a written acknowledgment of the receipt of said sum, from the surety, through plaintiff’s attorney, as security for the costs of said defendant, pursuant to order, etc.
    
      Held, that this was, in effect, an election by plaintiff to obey the order by deposit of the money and not by giving an undertaking, and that the money became plaintiff’s, and the surety plaintiff’s creditor.
    
      Further held, that where said deposit is ordered to be applied to the payment of the costs of a co-defendant for whose benefit said order was not made, the surety will not be deemed aggrieved thereby, as he does not own the money.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided June 20, 1888.
    Appeal by Charles Forbes, a surety, from an order directing the application of moneys deposited with the clerk of the court, to the payment of defendant Wilder’s costs.
    The facts appeared in the opinion.
    
      John H. Parsons, for appellant:—
    I. The only ground offered by respondent’s counsel before the court below, for taking this money, was, that it is justified by certain cases cited by him, which, upon examination, are found to relate solely to cases of deposit for purposes of bail, under peculiar provisions of § 200 of the old Code relating thereto. They have no relevancy to the case at bar, and do not justify taking Mr. Forbes' money, as is clearly shown by Fraser v. Ward, 9 Civ. Pro. Rep. 11.
    I. Mr. Forbes appeared without objection in the matter before the court at special term, was heard, and his rights passed upon. No question of his right so to appear was raised, as is shown by the order appealed from, and the record now before the court on this appeal. If there could be any doubt about his right to appeal, it is amply sustained by Hobart v. Hobart, 86 N. Y. 636; Louden v. Louden, 65 How. Pr. 411; Hotchkiss v. Platt, 7 Hun 56; aff’d, 66 N. Y 620.
    
      Charles H. Kitchel, for respondent:—
    1. The surety has no right to appeal or be heard on the question. The money deposited became and was the money of the plaintiff. The deposit in such a case is by or for the plaintiff. Code, § 3272; Herman v. Aronson, 8 Abb. N. S. 158; Salter v. Weiner, 6 Abb. 191; Commercial Warehouse Co., v. Graber, 45 N. Y. 343 ; Dunlap v. Patterson Fire Ins. Co., 74 Ib. 145. A motion to get back the deposit could not be made, nor an action to recover it be brought by a surety, but only by the plaintiff. The Code provides two wrays in which a plaintiff may secure the costs of an action. The court must make an order requiring the plaintiff either to pay into court the sum of $250, or, at his election, to file with the clerk an undertaking, etc. (§ 3272). If he elects to adopt the latter method, such undertáking must be executed by one or more sureties (§ 3273). It will be observed that these two methods are entirely different, the one being a method whereby plaintiff may himself secure the costs, without calling upon his friends to aid him, and such act or security is regarded as the act of the plaintiff alone; while the other method provides, as an alternative, that he may call in his friends to aid him in the form of an undertaking. If the plaintiff elects to adopt the former method, he deposits money, his own money. Moreover, by the very terms of the order, it is the u plaintiff ” and not his sureties who are required to pay into court the sum of $250.
    II. The receipt given to the surety instead of the plaintiff makes no difference. The money was received from or handed over for the plaintiff to stay proceedings in compliance with § 3272 of the Code. By that section the deposit is the deposit of the plaintiff. The surety was but the servant or agent of the plaintiff and did the act for him. It was the plaintiff’s act all the same and may be treated or enforced as such. Dykers v. Townsend, 24 N. Y. 61; Coleman v. First National Bank, 53 Ib. 323; Briggs v. Partridge, 64 Ib. 363. Besides, it had the effect intended, and plaintiff had the benefit of it. It enabled the plaintiff to go on with the case, and any and all parties to it -are estopped from saying that it was not the proper security or the act of the plaintiff. Town of Salem v. Williamsburgh Savings Bank, 35 Hun 1; Hill v. Burke, 62 N. Y. 111.
   By the Court.—Sedgwick, Ch. J.

In the course of the action the defendant, Muxlow, had applied for an order compelling the plaintiff to file security for the payment of her costs, and an order was made that the plaintiff pay into court the sum of $250 to be applied to the payment of defendant Muxlow’s costs, or that he file an undertaking, etc. The plaintiff commenced to obey the order by filing an undertaking. The sureties preferred not to have the trouble of attending for justification, and one of them furnished $250 in money. This money was deposited with the clerk, who, probably without the knowledge of the defendants or their attorney of the form of the receipt, gave to the attorney for the plaintiff a receipt in this form : Received from Charles Forbes per T. F. Sanxay, Attorney, as security for costs for the defendant Jane B. Muxlow, pursuant to an order of this court.”

This in effect was an election of the plaintiff not to file the undertaking, but to obey the order by depositing the money. In my opinion the money became the money of the plaintiff, and the appellant Forbes was the creditor of the plaintiff in the amount deposited. For this reason the appellant was not aggrieved by the order appealed from, as he did not own the money.

Order affirmed with $10 costs.

Freedman, J., concurred.  