This is a motion to compel judgment creditors to pay the costs of the defenses of a suit brought by a receiver appointed in a supplementary proceeding taken by them on execution against a judgment debtor. The Code provides (§ 321), that a person, of whom a cause of action shall become the property, after the commencement of an action upon it, shall be liable for the costs in like manner as if a party ; and the Revised Statutes (2d vol. 619, § 44) and the Laws of 1849 (chap. 390), provides that a person “ beneficially interested ” in the recovery in an action brought in the name of another, shall be as much hable for costs as a plaintiff.
In the case of Whitney agt. Cooper (1 Hill’s R. 632), it was held that persons holding a mortgage or hen were included *474in such definition. It was also held therein, that bringing an action might be by retaining an attorney, directly or indirectly, or engaging to pay his expenses, but it must be by some action on his part.
In Colvard agt. Oliver (7 Wend. R. 497), it was held that a cestui que trust came within the statute. In the first cited case, however, the court consider the statute intended to cover all cases where the interest of the party sought to be charged would be protected against the nominal assignee.
In the case of Miller agt. Franklin (20 Wend. R. 630), it was held that a person to whom a verdict had been assigned as collateral security, was not hable for any costs, and as the court strongly intimate, not even if he had taken part in the prosecution.
In Bliss agt. Otis (1 Denio's R. 656), and Giles agt. Halburt (2 Kern. R. 32), it was held that an interest to any extent in a recovery accompanied by interference and management of the suit, made the party interfering hable.
There is no evidence in this case of any interference by the judgdment creditors in the suit, either by directing it to be brought or subsequently taking any active managing part in it. This alone would be sufficient to exempt from liability as having brought it, and they were not the only parties interested. The receiver had an interest in his commissions and costs, and was hable to any other parties for their share of any of the proceeds of any judgment.
But I think the law was not intended to apply to cases of actions brought in the name of sheriffs, receivers, clerks or other officers of the court, although third parties might be interested in the recovery, unless the action was brought at the sole suggestion and urgency of such parties, and it was virtually conducted by them, and especially so to a case where an action was brought by direction or leave of the court. The case of Wheeler agt. Wright (23 How. 228), is directly in point, and must govern this case.
Motion denied, with seven dollars costs. Order to be settled on two days’ notice.