majority">By the court, Miller, J.

By section 317 of the Code it is provided, that in an action prosecuted or defended by an *321executor, administrator or trustee of an express trust, costs may be recovered, “but such 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.”

In the case at bar, no order was obtained from the court that the costs should be paid by the plaintiffs; and the question arises whether the execution departs from the judgment, and was improperly issued against the plaintiffs personally.

I think the plaintiffs were truste.es of an express trust, and, as such, the execution was improperly issued against them. They brought the suit as trustees, and so described themselves in the complaint. The instrument by virtue of which the plaintiffs acted, and the defendant was liable, shows that they were trustees. The powers conferred upon them were trust powers. They acted merely for the interest of those who had subscribed to the fund. They had no individual interest and derived no personal advantage from their position. - Their names were merely used by the University, for the purpose of enforcing the subscription.

The Code (§ 113) provides that the trustee of an express trust shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. The plaintiffs are clearly within this provision.* The contract of the defendant was made with them for the benefit of the University. Ho formal or written agreement is necessary to create a trust in money or personal estate; any declaration, however informal, which evinces the intention of the party with sufficient clearness, will harm that effect. (Day agt. Roth, 18 N. Y. 448, 453.) Here there is a written instrument describing the parties as trustees, and evincing upon its face that it was. designed to place them in that position.

*322It is said that the plaintiffs are not trustees of an express trust, within the provisions of 2 Revised Statutes, 228 and 229, sections 55 and 56. The title which embraces these provisions relates to real property (Id. p. 71), and I think in no way conflicts with the provisions of the Code before referred to.

The authorities referred to by the defendant's counsel, to sustain the doctrine that the, plaintiffs have brought the action as individuals, and that the description in the title of the summons and complaint, and the allegations in the complaint, are but a designation of their persons and not an averment of their office, are not applicable to the present easel In those cases it appeared quite distinctly that the debt accrued to the parties themselves, after the decease of the person they represented j and there was nothing to show any obligation to them in a representative capacity.

Here the defendant promised to pay the plaintiffs, as trustees j they acted as such, and the complaint shows that they seek to recover in that capacity.

In no point of view do I understand that this contract was made with the plaintiffs as individuals, and I think an action brought by them in their individual capacity could not be sustained; nor do I think the formal judgment of dismissal, entered in favor of the defendant, is conclusive as to the character qnd liability of the plaintiffs personally for the costs. The judgment entered must be taken in connection ■with the pleadings, and, as there appears to have been no direction of the court that the plaintiffs pay costs personally, under section 317 of the Code, it is not to be assumed that such an order was intended. This is not like a case where the court have formally decided, on a trial, that a party is - not a trustee of an express trust. (Sibell agt. Remsen, 30 Barb. 441.) The question, whether the action was improperly brought or conducted in bad faith, was never presented to the consideration of" the court by a motion for costs for that reason, and has not been passed upon.

*323I think an appeal lies from the order. It was not an application for favor, nor a matter which rested in the discretion of the court. It affects a substantial right which had never been determined.

Order reversed, with $10 costs of appeal.

In Howard's Unbridged Code, vol. 1, under section 113, will be found collected all the reported cases bearing on the various positions in which the question of trustee of an express trust may arise.—Rep.

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