¶1If this motion can be granted, it must be upon the ground that Eben Wheeler, the judgment-creditor, was beneficially interested in the recovery in the action. It must be conceded that had the plaintiff succeeded in the action, the recovery would have been for the exclusive benefit of the judgment-creditor. But this is not enough to charge a person not a party with the costs of the action. The statute (2 Rev. Stat., 619, § 44 ; 5 ed., 3 Ib., 909, § 10) relates only to actions “ brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action.” Ro matter to what extent the person sought to be charged, who is not a party, may be interested in the recovery, if in truth he is not chargeable with having brought the action, he is not chargeable with costs. (Giles a. Halbert, 12 N. Y., 32 ; Whitney a. Cooper, 1 Hill, 629 ; Miller a. Adsit, 18 Wend., 672.)
¶2This is the only test, as shown by all these cases. Indeed, the language of the statute is too plain and explicit to admit of any other construction. This, of course, has no reference to the class of cases provided for by section 321 of the Code, where the cause of action is assigned after the action is commenced.
¶3The motion must therefore be denied, with costs.