
    SLOCUM against BARRY.
    
      Court of Appeals;
    
    
      January Term, 1868.
    Order for Costs against Trustees.
    In an action by trustees, if the complaint alleges a contract made with the plaintiffs as trustees, for the benefit of the trust, the designation of the plaintiffs as such is not to be regarded as merely matter of description, but as showing that they sue in their representative capacity.
    In order to charge trustees of an express trust with costs of an action prosecuted by them as such, a special order of the court is necessary. The ordinary judgment is not enough, without something to show that mismanagement or bad faith on the part of the plaintiffs was made to appear to the court.
    The proper practice in such a case is to make a specific application to the court, founded on notice to the other party. ,,
    Appeal from an order.
    This action was brought by Hiram Slocum and others, respondents in this appeal, against Charles H. Barry, the appellant.
    The cause of action alleged in the complaint was a subscription made by the defendant to a fund for the Troy University, of which the plaintiffs were the trustees. When the cause was called at the circuit, the plaintiffs did not appear, and the defendant took the usual order dismissing the complaint. Judgment having been entered thereon for costs, the defendant issued execution against the plaintiffs to collect the costs from them personally; but he did not previously obtain from the court any order charging them personally, or allowing such execution to issue.
    The plaintiffs moved at special term to set aside the execution, and the motion was denied, with costs; but upon an appeal to the court at general term, this order was reversed.
    The court at general term held that the plaintiffs, being trustees,' shown to be such by the subscription paper set forth in the pleadings, and having no individual interest in the cause of action, they were trustees of an express trust, within section 113 of the Code of Procedure, and the contract was to be regarded as made with them as such trustees, and the formal judgment of dismissal' against them personally was not conclusive as to their personal liability, but must be taken in connection with the pleadings, which showed that they acted in the capacity of trustees. Hence an order of the court was necessary to charge them personally. The execution was accordingly ordered to be set aside.
    
      From the order entered on this decision the defendant appealed to the court of appeals.
    
      Mr. Reynolds, for the defendant, appellant.
    
      Mr. Millard, for the plaintiffs, respondents.
   Bacon, J.

This is an appeal from an order of the general term, in the third district, reversing an order of the special term, denying a motion by the plaintiffs to set aside an execution aga'nst the property of the plaintiffs.

The plaintiffs brought the action to recover from the defendant the amount of a subscription made by him for the benefit of the Troy University.

In the complaint they describe themselves as trustees of such institution, and they incorporate the subscription, which the defendant, with others, signed, by reference, into the complaint.

At the circuit, the plaintiffs not appearing to prosecute the suit, the defendant took the usual order dismissing the complaint, with costs, and upon this a judgment was entered, and an execution issued to collect the amount of costs of the plaintiffs personally; and the question is, whether this can "be done without a special order of the court directing it.

The plaintiffs are trustees of an express trust, as defined by section 113 of the Code.

They are the persons with whom and in whose name the contract was made, for the benefit of another. The defendant’s counsel claims that the designation of the plaintiffs, in the complaint, as trustees for the benefit of the Troy University, is mere matter of description, and does not indicate that they sue in any other character than as individuals. This might be so, if it were not for the fact that the subscription is set forth as part of the complaint, in which the plaintiffs are distinctly named and designated as trustees for the benefit of the university to be thereafter organized, and their powers and duties minutely defined ; and the defendant, with others, entered into the engagement with them to pay the amounts, by him and them subscribed, to them, as trustees, and for the purposes set forth in the subscription paper.

Nothing can be clearer than that they acted in a trust capacity, and that the defendant contracted with them as such, and that their names were used by the cestui que trust for the purpose of enforcing the subscription. No-action, I conceive, could have been brought upon this-subscription by the plaintiffs, in any other than a representative capacity, and as trustees of this express trust.

This being so, it follows that the collection of no- costs could be enforced against the plaintiffs personally, without an express order of the court to that effect.

By section 317 of the Code, it is provided that where costs are awarded in an action prosecuted by a trustee of an express trust, the same shall be chargeable only upon, or collected out of, the estate, party, or fund represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in the prosecution or defense of the suit.

The defendant’s counsel insists, that by the judgment in this case the court did direct the plaintiffs to pay the-costs personally, and that there is no proof to show that the-judge who rendered the judgment did not intend that such should be the result.

No such inference can fairly be drawn from the mere fact that the ordinary direction was given at the circuit, dismissing the complaint.

The section which provides for such a judgment, only allows it to be given when mismanagement or bad faith is imputed to the party prosecuting or defending; and clearly, this must be made to appear to the court, in some form, before such an order can be made, or such a judgment rendered. The true practice, we think, is to make a specific application, for such an order, founded on a notice to the other party to the end that he may have an opportunity to repel, if he can, the charge of mismanagement,, or the imputation of bad faith.

Such a conclusion cannot legally be drawn from the mere fact that he does not happen to appear when the cause is called on the calendar, and an order of dismissal is taken against him.

The question must, in some form, be presented to the court for its judicial determination, bio such application, as far as appears, was presented in this case, and it is substantially conceded that none was made ; and the form of the judgment, as rendered, does not authorize the collection of the execution to be enforced, personally, against the plaintiffs.

The order of the general term should be affirmed with costs.

Order accordingly.  