The defendant and his1 wife, for whom the plaintiff. William Hughes has brought this action as trustee, entered into articles of separation on the 22d day of December,' 1887, with one Mary L/ Chamberlain as trustee of the wife, and this action was brought to recover certain, sums required to be paid by the defendant in the articles of separation. Mary L. Chamberlain was removed as trustee by an order of the Supreme Court and the plaintiff substituted prior to the commencement of the action. He recovered judgment which was duly affirmed by this court (36 App. Div. 302), but reversed by the Court of Appeals. (Hughes v. Cuming, 165 N. Y. 91.) The reversal was on the ground that the court had no jurisdiction to remove the trustee named in the articles of separation or to appoint the plaintiff in her place. The remittitur recites that the Court of Appeals “ did order and adjudge that the judgments below be and the same hereby are reversed and complaint dismissed, with costs in all courts.”
On applying at the Special Term for the usual order that the judgment of the Court of Appeals be made the judgment of the Supreme Court, the defendant asked for the costs against the plaintiff William Hughes personally, and this appeal has been taken from so much of the order then granted as denied that relief.
I do not think the plaintiff can be held absolutely liable personally for the costs of the action. He is not made so by any statute to which the attention of the court has been called, and the decisions cited on the appellant’s brief only relate to cases where one bringing an action in a representative capacity without authority has been *365expressly charged by the court individually with the costs. It is not doubted that the Court of Appeals might have directed a dis. missal of the complaint in this action, with costs of all courts against the plaintiff personally, and it may be that the defendant may yet obtain a modification of the remittitur which shall include that penalty, but it is clear that as the remittitur is it does not embrace such a liability, and that the Special Term was not obliged to enter judgment to that effect under the mandate as it came from the higher court.
Assuming that it was within the discretion of the court at Special Term to grant or refuse the defendant’s application, I am of opinion that the discretion was wisely exercised. The plaintiff was placed in his position by an order of the Supreme Court, which received the unanimous approval of this appellate tribunal. It could hardly be expected that he should know that the whole proceeding was unlawful and void. In bringing the action he did but what he naturally assumed to be his duty, and what would have been his duty had his title to represent the defendant’s wife been undoubted. There seems to be no question but that the defendant is indebted to his wife under the terms of the articles of separation, and it would be far more just to charge the costs upon that indebtedness than to saddle them upon an individual who has no personal concern with the litigation, and whose only fault consists in misplaced confidence in the accuracy of the decisions of the lower courts.
The order, so far as appealed from, should be affirmed.
All concurred.
Order so far as appealed from affirmed, with ten dollars costs and disbursements.