
    Livingston vs. Clements.
    Where an ejectment suit was defended in the name of a tenant, at the instance and for the benefit of his landlord, the court refused, on motion of the tenant, to compel the landlord to pay the plaintiff’s costs; especially, as the facts on which the motion rested were rendered doubtful by counter affidavits.
    
      Semble, that a landlord defending a suit in the name of his tenant will under no circumstances be ordered to pay the costs recovered by the plaintiff; and that the case of Jackson, ex dem. Martin, v. Van Antwerp, (1 Wend. 295,) contra, has been overruled.
    
      C. Stevens, for the defendant,
    moved for. a, rule against one Polly, that he pay the plaintiff’s costs of this suit. The action was ejectment for land in the defendant’s possession, and Stevens read an affidavit of the defendant, that Polly claiming title, the defendant at his request continued, in possession and defended, on the faith of Polly’s promise to indemnify him. That he should not otherwise ijave defended. That the plaintiff had recovered, and caused the defendant to, be imprisoned in virtue of a ca. sa. for the costs. The defendant also stated that he defended as the tenant of Polly, and it appeared that the latter had admitted the tenancy to Mr. Perkins, the attorney who defended the cause,
    
      M. T. Reynolds, contra,
    read Polly’s affidavit denying the tenancy; and another, showing the defendant’s admission, while in prison, that Polly had never agreed to indemnify him.
   By the Court, Cowen, J.

This case, as it stands between the plaintiff and Polly, would, on the affidavits of the defendant, be the same with Jackson, ex dem. Martin, v. Van Antwerp, (1 Wend, 295;) that is to say, Polly would be liable to pay the plaintiff’s costs on his motion. Then it is insisted that he may be compelled to do the same thing upon the defendant’s motion, for which we are referred to Colvard v. Oliver, (7 Wend. 497.) The principle of the latter case would seem to be a warrant for this motion, on the defendant’s facts, if we could go behind the nominal defendant and consider another, defending in his name, as the real party for the purpose of compelling the latter to pay costs on the application of the plaintiff. I should doubt whether We could, even were the landlord, who defended in the name of his tenant, called on. Jackson v. Van Antwerp does not appear to be sustained by any precedent; and is I think, in principle, overruled by Miller v. Adsit, (18 Wend. 672.)

But it is enough to say, that the facts here sought to be shown by the defendant’s affidavits are denied by Polly, and his denial fortified by the defendant’s admission. The proofs of the two parties now litigating, are nearly of equal strength. This renders it an unfit case to be disposed of summarily. The defendant should be put to his action.

Motion denied.  