Messrs. George II. Nichols & Co., but not to the claims of the other creditors of the Russell Coe Fertilizer Company.

This result can be brought about by paying Messrs. George H. Nichols & Co. just what they would receive if the appellant's claim of $1,945.87 were not considered as a claim against the assets in the hands of the receiver. After this has been done, the appellant will be entitled to his rateable dividend like the other creditors.

The order appealed from should be modified in accordance with the views which have been expressed, without costs to either party on this appeal.

Order reversed, and the receiver directed to admit Davidge's claim to the extent of $1,945.87 as valid, and to pay it pro rata with the other claims against the company.

MARY A. P. TUCKER v. CORNELIA GILMAN.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) COSTS-LIABILITY OF ASSIGNEE OF JUDGMENT.

Plaintiff recovered a judgment against defendant for the amount unpaid upon her subscription to stock of a corporation, and assigned the same to appellant. Thereafter the judgment was reversed. Held, that the assignment had the effect of transferring the cause of action, and that appellant, as assignee of the judgment, became liable for the costs of defending the action; that such liability was not limited to the costs accruing after the assignment, but included all costs, and that it could not be avoided by his omission to take active charge of the prosecution.

APPEAL by Preble Tucker from an order directing him to pay the costs recovered by the defendant in this action.

Chas. J. Hardy, for app'lt; Geo. H. Fletcher, for resp't.

DANIELS, J.-The plaintiff, as the assignee of the receiver of the Kings County Manufacturing Company, a corporation formed under the manufacturing laws of this state, brought this action to recover the balance of sixty per cent. of the defendant's unpaid subscription for the stock of the company. The receiver was appointed on the petition of the assignees in bankruptcy of Frances Mirick, who was a judgment creditor of the corporation. She recovered a judgment at the trial for the amount owing by the defendant on her subscription. And after it had been entered she made a written assignment of the judgment, "and all sums of money that may be had, or obtained, by means thereof, or on any proceedings to be had thereupon." An appeal was taken from the judgment, which was afterwards heard by this general term, and the judgment was reversed and a new trial ordered. peal was then taken to the court of appeals, where this decision was affirmed. Both decisions proceeded upon the construction of the statute declaratory of the liability of shareholders for their unpaid subscriptions, holding an action in equity, and not an action at law, as this was, to be the appropriate remedy for the enforcement of the liability. The statute has made the shareholders. liable upon their unpaid subscriptions so far as to pay on each share the sum necessary to complete the amount of the share, as

An ap

fixed by the charter of the company, or for such proportion of that sum as shall be required to satisfy the debts of the company. 2 R. S., 6th ed., 391, § 5. And to ascertain and adjust these amounts is the province of an action in equity. And the plaintiff failed to secure redress for the reason that she failed to acquire the right to maintain that action, and did not in fact proceed in that form. But the cause of action presented by her complaint was for the recovery of the unpaid amount owing by the defendant on the shares of the corporation taken by her. And it is the costs recovered by the defendant in this failure of the plaintiff's action that the assignee has been ordered to pay.

This order was made under the authority of § 3247 of the Code of Civ. Pro., which has provided "where, after the commencement of an action, the cause of action becomes by transfer or otherwise the property of a person not a party to the action, the transferee, or other person so interested, is liable for costs, in like cases and to the same extent as if he was the plaintiff, and where costs are awarded against the plaintiff, the court may by order direct the person so liable to pay them." And this assignment had the effect of transferring to the assignee the cause of action on which the plaintiff endeavored to maintain her action. For by § 1912 of the Code of Civ. Pro. a judgment for a sum of money, which this judgment was, may be transferred by assignment, and it is only when it may have been recovered upon a cause of action not itself assignable or transferable, that it will fail to transfer the cause of action in case the judgment shall be afterwards vacated or reversed. This was not such a cause of action. It was for a debt owing by the defendant, and recoverable by the creditors of the corporation so far as it might be necessary to satisfy the debts of the company, and proportionately with the liability similarly existing against other shareholders for their unpaid subscriptions. The liability was in no sense a penalty, but it was for what the subscribers had rendered themselves liable to pay in purchasing the shares of the company. And that was transferable before judgment under the general principles of the law concerning the assignability of choses in action. The assignment of the judgment, therefore, did assign the cause of action asserted by the plaintiff as the foundation of her suit. And that is the effect which such an assignment of a judgment was held to have at common law. It operated as an assignment of the cause of action itself. Bolen v. Crosby, 49 N. Y., 183; Spears v. Mayor, etc., 87 id., 359, 369. And both by this section of the Code, as well as the principle supported by these authorities, the assignee became, by the assignment made to him, the owner of this cause of action, and liable to pay the costs of defending the action.

This liability has not been limited to the costs accruing after the assignment. But it includes all the costs. For 8 3247 has declared that the transferee "is liable for costs in the like cases and to the same extent as if he was the plaintiff." And that plainly includes all the costs which shall be recovered by the defendant.

It is no legal answer to this liability that the plaintiff, in the

end, proved to have no well-founded cause of action. If it were, then the assignee would in all cases escape the liability which the statute has declared. For where the plaintiff has a good cause of action, the assignee would not be liable at all. And if he were not, when the plaintiff failed to establish a cause of action the statute would provide the way to defeat its own enactment, which plainly could not be the intention of the law. It is only when the plaintiff fails that the assignee is liable for the costs. And an actual right of action could not have been intended to be necessary to produce that liability. The most that the statute can be held to have required is that the assignment shall be of the alleged cause of action which by the result of the litigation shall be defeated. The design evidently was to declare the assignee liable for intermeddling or dealing in the unfounded legal controversies of other persons. He can, by the assignment to him, acquire all the chances of success, but after he shall have done that, and they fail, then under this law he may be ordered to pay the costs of the defendant. The liability follows the assignment of the asserted, not a real cause of action.

Neither can this liability be avoided by his omission to take the active charge of the prosecution of the action. For it has been made to result from the assignment itself, by which the assignee becomes entitled to the advantages of the litigation in case of its success. All that is requisite is that the cause of action, whatever it may be, when it is capable of being transferred, shall become the property of the assignee. And that property will be derived from the assignment alone.

By taking the assignment the assignee made himself a party to the litigation. From that time it was carried on wholly for his benefit. If it had resulted favorably the proceeds would have belonged to him. It was his suit, and it was by his permission that it afterwards went forward in the name of the plaintiff. He voluntarily assumed that relation to the action. And the merits were as fully heard for him as they could have been if he had been in name, as he was in fact, the party prosecuting. He acquired the litigation with all its consequences, one of which was this liability.

There is no foundation whatever for the objection that this section of the law is in conflict with the constitution of this state. It has gone no further than to permit the assignment, subject to the condition that the assignee shall assume the payment of the costs when there shall be an adverse result. And he accepted this condition when he took the assignment. The law has deprived him of no right whatever, but he has done that himself by his own voluntary act. He was at liberty to subject himself to this liability or not as he himself elected. And as he chose to do so for the expected advantages, he must abide by the result the law declared might follow his failure. There was no constitutional restraint standing in his way. It was a matter of pure volition on his part whether he would take this risk which the statute had declared. He did take it, and cannot complain that the law is now enforced against him.

The order should be affirmed, with ten dollars costs and the disbursements.

VAN BRUNT, P. J., and BRADY, J., concur.

THE PEOPLE ex rel. DENIS J. MAHONEY v. CHARLES F. MAC LEAN et al., Com'rs.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) MUNICIPAL CORPORATIONS-POLICE-REMOVAL.

The captain and sergeants of police testified that relator staggered, was unsteady and uneasy in the ranks, and that his breath smelt of liquor. Relator testified that he had taken five five-grain quinine pills for pain in his head, and was corroborated by a brother officer as to his complaints of sickness, who stated that relator refused to report sick because he was a new man and did not want to put his mother to trouble; and by a physician as to the effect of such a quantity of quinine on the appearance of the person taking it. Held, that there was no such preponderance of evidence in relator's favor as to permit a verdict against him to be set aside, and that the question was one for the commissioners to decide.

(BRADY, J., dissents.)

CERTIORARI to review the relator's dismissal from the police

force.

John M. Tierney, for relator; John J. Delany, for resp't.

BRADY, J. (dissenting).-The relator, who was a patrolman attached to the Twelfth precinct, was dismissed upon a charge of conduct unbecoming an officer, the specification being that at six o'clock, P. M., roll-call, he was so much under the influence of liquor as to be unfit for patrol duty. The testimony in support of the charge was by captain and sergeants, who testified that when the relator went into the station-house, a few minutes before rollcall, he staggered; and when he subsequently walked out with other officers in the ranks, he was uneasy and unsteady, and that his breath smelt of liquor.

It must be noted that no police surgeon was called, and that the charge rests upon the statement of these officers.

About the time of this occurrence the relator stated that he took quinine pills as a reason for his condition, whatever it may have been, and exhibited the box containing what was left of them which he got at a drug store on Grand street; and it appears that at nine o'clock he was sent out on duty and performed his tour. It also appears that when he was charged by his captain with being under the influence of liquor, he said he had not drank anything. He proved also by a brother officer, who saw him coming out of the drug store and asked him what was the matter with him, that his answer was that he was suffering from pains in the chest, back and head and had a heavy cold.

The relator's story was that after coming out of the drug store he went to his home, took five five-grain pills taking three first and two afterwards, ate a light supper and went to the station house to turn out on patrol duty; that he met the officer who had previously seen him coming from the drug store, and on being asked by him if he felt any better, replied that he was much worse and suffering very much from pain in the head and dizziness.

The officer asked him why he did not report sick and he answered that being a new man in the house, and having a brother on the sick list, and having buried his father a short time before, he did not like to put his mother to any further trouble, as she was an old woman and he thought he could fight the disease off. This was about a quarter to six o'clock, and it thus appears that according to his own statement he went to the station house though feeling worse rather than return home, and in the belief that the captain would see his condition and send for a surgeon.

There is a conflict as to his appearance of drunkenness, and evidence of a physician of this city that the quantity of quinine which the relator took would account for his appearance when he was charged with being under the influence of liquor; that the effect would be to make him look sleepy, dazed, and that he might stagger; and further that the same effect might be produced with less than that amount of quinine taken by the relator; that he had seen persons show symptoms of vertigo after taking ten grains. The relator testified he had taken no liquor of any kind, and the case therefore is destitute of any other evidence than the impres sions created upon the witnesses called to prove the charge by his appearance and by his staggering, which was accounted for by the testimony of the physician already mentioned and by his own statement, in the absence of any proof existing in the case that he had drank any spirituous liquor.

If the rule which was declared by the court of appeals in earFier cases still prevailed it would be our duty to affirm the judg ment of the commissioners. But in the recent case of McAleer v. French, 119 N. Y., 502; 30 N. Y. State Rep., 72, the court of last resort has decided that under the provisions of the Code of Civil Procedure, § 2140, in regard to questions to be determined upon the hearing on the return of a certiorari where that writ is issued to review the determination of the police commissioners, the supreme court may inquire not only whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination, but it must also look into the evidence, and if it finds that there is a preponderance against the determination of the commissioners it has the same jurisdiction to reverse the determination that it now has to set aside the verdict of a jury as against the weight of evidence.

An examination of the record in this case shows a preponder ance of proof in favor of the statement of the relator that his supposed inebriety was the result of illness and the quinine which he took to overcome it. His failure to report himself sick is also explained by him satisfactorily. Being a new man, he said, his brother being on the sick list and his father having recently died, he did not want to cause any distress to his mother. There is ab solutely no evidence in the case against his statement, except the impressions which his conduct made upon the captain and sergeants and others who testified as to his condition. But these impres sions are overcome by the facts united to the impressions of the other witnesses who saw him about the time he reported for duty. Applying the principles of the case decided in the court of