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
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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.