In this case the plaintiff sued as assignee under a voluntary assignment in trust, executed by an association called the Forest and Agricultural Steam Engine Company, created under general acts of the legislature of this state. The action was commenced to recover damages, for levying on property, included in the trust, under an execution against the company, issued some time after the execution and delivery of the assignment. At the trial, the complaint was dismissed on the ground that the assignment was totally void ; and judgment was entered, in general terms, for the defendant’s costs. An execution having been issued against the plaintiff for those costs, and returned unsatisfied, he was cited to appear before a judge, under supplementary proceedings, to -be examined concerning his property. A motion having been made before the judge to set aside the order, on the ground that a trustee is not personally liable for costs, it was denied, and from this decision the plaintiff appeals.
Whatever was the law formerly on this subject, the code (§317) expressly provides “that in an action prosecuted or defended by an executor, administrator, trustee of an express *443trust, or a person expressly authorized, by statute,” costs shall be chargeable only upon or collected of the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense.
The plaintiff in this case is the assignee of an express trust, and although his complaint was dismissed on the ground that the assignment was void, yet nothing appears to show any bad faith on his part, in prosecuting the action. To be sure, it is maintained that, as the assignment was held void by the judge who tried the action, the plaintiff therefore was not a trustee at all, and sued without any right to maintain the action. But was he not a trustee until the instrument was declared void ? Deeming himself a trustee under an instrument regularly executed, and, for all that we can see, considering it not only his right, but his duty to resort to this method of claiming the property entrusted to him, he commenced this action. If, indeed, he assumed to act as trustee without any color of authority, he would then be personally liable for costs, even without any express direction of the court; as, if he undertook the trust upon the mere oral request of the president of the company, or under an instrument not executed in the manner in which instruments of this nature must be executed, to make them the act of the corporation. In such case, the instrument would be a palpable nullity, and any acts which he performed under it would be without any color of authority. But in the case before us, as far as we can see, there was an instrument, legally executed, appointing the plaintiff trustee, and his acts may be compared to those of a person acting as a public officer, who has no proper title to the office, but whose acts have a certain efficacy. He is exercising legal authority, de facto; and he would have a right to claim and recover, in some instances, in his own name, property belonging to the interests which he represents. In this case, doubtless, the assignment was an essential chain of his title, and as it was pronounced void, he could not of course *444maintain his action. But, nevertheless, it was not an absolute nullity, so as to deprive him of all excuse for acting as a trustee, and instituting an action for damages done to property which he believed belonged to the trust. I therefore think that the plaintiff ought not to be made liable for costs, without the express direction of the court, on the ground of mismanagement and bad faith.
[New York General Term, November 7, 1859.The order appealed from should be set aside, but without costs.
Order affirmed.
Roosevelt, Clerke and Sutherland, Justices.]