Motion to compel one Eben Wheeler to pay the costs awarded to 'defendants.

This action was brought by John R. Wheeler, receiver, against Mehemiah Wright and William G. Wright, to set aside a conveyance of real property. Eben Wheeler had recovered a judgment against Mehemiah Wright, upon which an execution had been issued to the proper county, and returned unsatisfied, and an order for examination in supplementary proceedings made by a justice of this court, and the judgment-debtor examined. In the course of the examination, the debtor disclosed the conveyance of certain real estate to his son, William G. Wright, one of the defendants in this action. After-wards, an order was duly made appointing the plaintiff herein receiver-of such judgment-debtor, and directing him to bring an action to set aside the conveyance, and to compel an accounting by William G. Wright of the proceeds and receipts of such real estate in his hands.

This action was brought, in pursuance of such order, by the receiver. The judgment-creditor neither engaged the attorney, nor directed the commencement of the action, nor interfered with the action during its progress. The plaintiff was unsuccessful in the action, and judgment entered for the costs of defendants. An execution issued thereon against the receiver, and returned unsatisfied; and there were no assets in the receiver’s hands applicable to the payment of such costs. The defendants now moved to compel the judgment-creditor, Eben Wheeler, to pay these costs, on the ground that he was the party beneficially interested in the action.

I. Eben Wheeler is the only person “ beneficially interested” in bringing this action. Under 2 Rev. Stat., 619, § 44, any person beneficially interested is liable. (1 Hill, 629 ; 20 Wend., 630 ; Bliss a. Otis, 1 Den., 656.) The statute makes not only the simple assignee liable (Norton a. Rich, 20 Johns., 475 ; Schoolcraft a. Lathrop, 5 Cow., 17), but “ any person beneficially interested” in the recovery in such action. These terms extend to every person who holds an interest, by way of mortgage or lien, in the chose in action. (1 Hill, 632-3.) A person may be so liable, in consequence of being beneficially interested as a cestui que trust, without being either a partial or total assignee. (Colvard a. Oliver, 7 Wend., 497.) The clause takes in every such vested interest as the courts of law will protect against the interference of the nominal party. (1 Hill, 632-3; Norton a. Rich, 20 Johns., 475; Jordan a. Sherwood, 10 Wend., 622; Martin a. Hawks, 15 Johns., 405 ; Schoolcraft a. Lathrop, 5 Cow., 17.)

II. Process in the nature of a fieri facias against personal property, may be issued for the collection of such costs, founded on such order of court. (Laws of 1847, ch. 390, § 3.) The remedy to compel Eben Wheeler to pay the costs is by motion for an order. (Giles a. Halbert, 12 N. Y., 32 ; laws of 1847, ch. 390, § 3.)

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