McHarg v. Donelly. PPEAL, by the Mechanics and Farmers' Bank of Albany, from an order made at a special term, by Justice HARRIS, charging it with one half of the defendant's costs in this action, recovered against the plaintiff therein. The essential facts are stated in the opinion of the court. By the Court, HOGEBOOM, J. It affirmatively and conclusively appears that the Mechanics and Farmers' Bank, although plaintiffs in one of the judgments against Joseph Clinton, upon which supplementary proceedings were instituted, which resulted in the appointment of the plaintiff as receiver, were never in fact concerned in said supplementary proceedings, nor instrumental in obtaining the appointment of said receiver, nor in any way connected with, or authorizing, or directing this suit or the prosecution thereof. They cannot, therefore, be chargeable with the costs of the action, upon the ground that they are the real parties prosecuting the same. The proceeds thereof, if any had been collected, might perhaps have been applied for their benefit, or gone towards the extinction of their claim against the judgment debtor. But that is not enough to charge them with the costs of a suit, commenced without their consent, knowledge or agency. The argument would have been equally strong, if commenced against their will and earnest protestations. A legatee, distributee, or one of the next of kin of a deceased person, is not chargeable with the defendant's costs in a suit successfully prosecuted by the executor or administrator, although if a recovery had been had, it would have enured directly to the benefit of such legatee, distributee or next of kin. The reason is, that although he may participate ultimately, or even immediately, in the fruits of the litigation, and may therefore, in a limited sense, be said to be represented by the executor, he is not so in the suit itself, or in the mode of conducting the same. If, therefore, the Mechanics and Farmers' Bank are to be charged with the costs of this McHarg v. Donelly. litigation, in whole or in part, it must be upon some other principle. It is said they are so chargeable under the 317th section of the code, which in certain cases authorizes a recovery for costs, and makes them chargeable only upon, or collectable out of, the estate fund, or party represented, unless the court shall direct the same to be paid by the party to the record, personally, for mismanagement or bad faith in the action. To say nothing of the question whether this action is one of those specified in that section, the point is, whether the Mechanics and Farmers' Bank is, within the meaning of that section, the party represented by the receiver. I think it is not. For the purposes of this section I think the receiver represents himself, and the estate or fund of which he is receiver and of which he has the custody and control, subject to the supervision of the court, and not the judgment creditors, under whose judgments he derived his appointment, unless they have directed or authorized the prosecution of the suit. Then he becomes merely their agent, and they are liable as the real parties. I have already alluded to the similarity in position between these judgment creditors and the next of kin of a deceased party. I suppose the general creditors of an insolvent debtor who has made a voluntary assignment, in part for their benefit, are not responsible for the costs of a suit prosecuted by the assignee without their agency or direction. The assigned estate may be, and in a proper case always is, but I apprehend the creditors protected by the assignment are not, without some special authority or interference on their own part. The language of the section is satisfied without implicating the judgment creditors in the consequences of a litigation which they cannot control, and I think it is the better and more equitable construction. I am aware that it has been held that for certain purposes-for example, setting aside a fraudulent assignment McHarg v. Donelly. the receiver represents the creditors of the judgment debtor. (Porter v. Williams, 5 How. Pr. Rep. 441. 5 Selden 142. Wilson v. Allen, 6 Barb. 544. Gillet v. Moody, 3 Comst. 479. Talmage v. Pell, 3 Selden, 328.) But he is so characterized simply in contradistinction to his being the representative of the judgment debtor. He is said to represent the creditors, because he represents the estate of the judgment debtor, in which the creditors are interested, as well as the debtor himself. He is obliged sometimes to act in opposition to the debtor, and then in a proper sense he represents the estate in which creditors are interested, and therefore them; and so, in a partial sense, he represents creditors when unsuccessful in a suit, because the costs are chargeable upon the estate, and to that extent, and in that way, upon the creditors, because they lose so much of the fund which would otherwise be applied in satisfaction of their claims. If, therefore, the case is not a proper one for charging the plantiff personally with the costs, for mismanagement or bad faith, and if the receiver has no assets of the estate represented by him, out of which the costs can be paid, I think the defendant is remediless. The order of the special term, so far as it respects the appellants, should therefore be reversed, but under the circumstances, and in view of the novelty of the question, I think, without costs. [ALBANY GENERAL TERM, May 3, 1858. Wright, Gould and Hogeboom, Justices.] WILLIAM P. VAN RENSSELAER vs. JOHN N. SMITH. STEPHEN VAN RENSSELAER vs. ROBERT HAYES. STEPHEN VAN RENSSELAER vs. PETER BALL. ROBERT CHRISTIE and others, assignees of William P. Van Rensselaer, vs. DAVID DE FRIEST. Covenants, in leases in fee, to pay rent, fasten themselves upon, and run with, the land, as to their burden, and may be enforced against the assignee. A covenant is capable of running with the land, although not directly to be performed on it; provided it tends to increase or diminish the value of the land, in the hands of the holder. Under our laws, the relation of landlord and tenant is made to exist as between the grantor and grantee in a conveyance in fee of manor lands, reserving rents. A statute privity is created-enough to pass a covenant to pay rent to each subsequent assignee of the land conveyed. The lessor's interest in such a lease, is an entity assignable, with its remedies, as against the assignees of the lessee; to be enforced by entry for nonpayment of rent, or other forfeiture. The lessor's interest, as well in his own hands as in those of his assignees, is, pro hac vice, equivalent to a reversion. The right of entry reserved in a lease in fee, with the remedies for enforcing it, are assignable by the lessor, so as to authorize the assignee to bring ejectment in his own name. The statute remedy of re-entry by ejectment has been applicable by and to the parties to such leases; which remedy is not impaired by the statute of 1846, abolishing the remedy by distress for rent. Leases in fee, reserving rents, are valid; and the estates and rights of both lessor and lessee under the same, are assignable, and capable of being enforced according to their tenor. What is a sufficient notice of intention to re-enter, for non-payment of rent, prior to bringing an ejectment. under the act of 1846. HE first of the above actions was brought for the recov THE ery of rent accrued under three several demises in fee, of lands in Schodack, Rensselaer county, in all of which Stephen Van Rensselaer was the lessor. The first was executed June 26, 1790, to Jacobus Decker, his heirs and assigns. The second was executed to Samuel Hitchcock, his heirs and assigns, on the 4th of September, 1794. The third was executed to Jacob Smith, his heirs and assigns, on the Van Rensselaer v. Smith. 7th of November, 1794. Each lease contained a covenant on the part of the lessee, for himself, his heirs, executors, administrators or assigns, to pay to the lessor, his heirs or assigns, the rents reserved. Stephen Van Rensselaer, by his last will and testament, executed on the 18th day of April, 1837, devised the said rents, and all his right, title and interest in the demised premises, to the plaintiff. The defendant was in possession of portions of the demised premises, claiming title through the original lessees. The defendant demurred to the complaint, on the ground, among others not necessary to be stated, that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, at a special term, and judgment was entered for the plaintiff for $531.76, besides costs. From that judgment the defendant appealed to the general term. The second action (against Hayes) was also brought for the recovery of rent, which was claimed to have accrued upon a lease in fee, of lands in Berne, Albany county, executed by Stephen Van Rensselaer to Jacobus Dietz, his heirs and assigns, on the 15th of February, 1796. This lease also contained a covenant on the part of the lessee, for himself, his heirs, executors, administrators and assigns, to pay to the lessor, his heirs or assigns, the rent reserved. The defendant was sued as the owner of 128 acres of the demised premises. He put in an answer denying the material allegations in the complaint. The cause was tried at the Albany circuit, in January, 1857, before Justice W. F. ALLEN, without a jury. The justice found and decided the several issues of fact in said action as follows: He found and decided that the indenture, or lease in fee, alleged in the complaint, was executed and delivered by the parties respectively thereto, as alleged in the complaint; that the lessee became seised and possessed thereunder of the demised premises; that said lessor or grantor, Stephen Van Rensselaer, died on the 26th day of January, 1839; that by his will and testament duly executed, and the subsequent assignments, grants and conveyances, as alleged in the complaint, the plaintiff became seised |