
    Frank Hiscock and Others, Respondents, v. Edward Tuck, Appellant.
    Fourth Department,
    November 12, 1907.
    Costs — liability of transferor of action — section 3247 of the Code of 'Civil Procedure construed — when liability for costs enforcible by action.
    One who transfers honda to another under an agreement that-the transferee shall bring suit thereon and return the proceeds to the transferor, less commissions, is liable for the costs of an unsuccessful suit by the transferee.
    When such transferor is within the jurisdiction of the court he may be charged with costs by a proceeding under section 3247 of the Code of Civil Procedure, but where he is without the jurisdiction, and has designated no person upon whom process may be served, an action may be brought to recover the costs.
    The liability of a transferor for costs exists both at common law and under the statute, and has generally been enforced by a summary proceeding; but section 3247.of the Code of Civil Procedure, allowing such proceeding, is permissive merely and does not bar ah action where the proceeding is not an adequate remedy.
    Appeal by the defendant, Edward Tuck, from an interlocutory judgment of the Supreme Courttin favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 13th day of May, 1907, upon the decision óf the court, rendered after a trial at the Onondaga Special Term, overruling -the defendant’s demurrer to the complaint.
    
      Arthur S. Hamlin, for the appellant.
    
      A. H. Cowie, for the respondents.
   Williams, J.:

The judgment should be affirmed, with costs, with leave to . defendant to plead over on payment of the costs of the demurrer and of this appeal.

The action is to charge the defendant with liability'under section 3247 of the Code of Civil Procedure, and the question here involved is whether such liability can be established and enforced by action or whether the sole remedy is by proceeding under the- section of the Code. The section declares the liability, and provides the court may order payment, no.t that it must.

There is no question under this demurrer that the defendant is liable for the costs sought to be recovered. In 1897 he was the owner of bonds of the Sodus Bay and Corning Railroad Company, upon which the interest was over twenty years in arrears. He agreed with one Rudd that the alleged liability upon such bonds of one Magee, should be transferred by defendant to Rudd, and that Rudd should prosecute an action against Magee’s executors, and the recovery should be paid over to defendant, less the amount to be retained by Rudd and his attorneys for costs, services and expenses. The transfer of the bonds was accordingly made, and the action was prosecuted, but resulted in a judgment dismissing Rudd’s complaint with $4,340.05 costs, on which execution was issued and returned unsatisfied. Rudd was insolvent and died. The executors of Magee assigned the judgment for costs to plaintiffs here, who were their attorneys in that action. Upon these conceded facts the liability of this defendant under this section of the Code clearly exists. If defendant was within the jurisdiction of the court, the remedy provided for in the section itself would very likely have been applied. The difficulty, however, in so doing was that the defendant was out of the United States and had been for more than five years, and had designated no person upon whom papers might be served under section 430 of the Code of Civil Procedure. Therefore, this action has been commenced.

This liability was one that existed at common law before the enactment of the Revised Statutes (2 R. S. 619, § 44), the provisions of the Code of Procedure (§ 321) and the Code of Civil Procedure (§ 3247) relating thereto. ( Waring v. Baret, 2 Cow. 460; Norton v. Rich, 20 Johns. 475 ; Schoolcraft v. Lathrop, 5 Cow. 17; Jackson v. Van Antwerp, 1 Wend. 295 ; Colvard v. Oliver, 7 id. 497.)

In such cases the statute by giving a remedy for the enforcement of the right does not necessarily exclude other-remedies except by express words. (Platt v. Sherry, 7 Wend. 238 ; Irving v. Britton, 8 Misc. Rep. 208.)

At common law, under the Revised Statutes and the Codes, the remedy to enforce this liability has uniformly been a summary one, and an order to pay enforced by attachment or proceeding for contempt. We are aware of no authority, however, holding that an action could not be maintained if the summary proceeding would not be an adequate, effective remedy, and our conclusion is that an action can be brought under such circumstances. Under conditions somewhat like those existing here Chief Justice Nelson in McDougall v. Richardson (3 Hill, 558) said: “ The only question arising upon' this demurrer is whether an action of debt may be maintained to recover a bill of costs, ordered to be paid by a court of common pleas, on the decision of a special motion. ' The usual remedy is by attachment; but here the party has gone without the jurisdiction of the court and thus prevented a resort to that kind of process. * * * I agree that it would be very unfit to entertain an action where it was in the power of the court making the order to enforce obedience by attachment. Neither necessity nor convenience call for the action in such a case. But where the defendant has gone beyond the jurisdiction of the court and left it powerless in respect to the more appropriate and summary remedy, it is obvious that a failure of justice must ensue from the mere act of the delinquent party unless an action at law be permitted.”

Apparently there is no reason why this recovery should not be had unless it be that the remedy under the statute cannot be applied by reason of the absence of the defendant from the* State, and such remedy is the exclusive one. We are not willing to permit defendant’s escape from the liability on such a ground.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to defendant to plead over upon payment- of the costs of the demurrer and of this appeal.  