Hall a. Lindo. Both parties now moved for a readjustment. George Carpenter, for the plaintiff. HILTON, J.-The plaintiff appeals from the decision of the clerk on adjusting costs, in allowing for proceedings subsequent to the notice of trial; but as it appears that the notice of trial was served before the defendants received the order permitting the plaintiff to discontinue on payment of costs, I do not understand upon what principle the defendants can be deprived of a fee to which they became entitled on serving the notice. The defendants also appeal from the adjustment, claiming to be entitled to separate bills of cost, inasmuch as the defendants were not united in interest, and a separate and distinct defence was interposed on behalf of each; and although the same attorney appeared for both, yet that fact, under the peculiar circumstances of this case, ought not to deprive either defendant of his right to costs. (Code, § 306.) Undoubtedly the general rule is, that several defendants jointly liable do not become entitled to separate bills of costs, by defending by different attorneys, where the court can per ceive that the object is to charge the plaintiff with unnecessary expense upon his failure in the action, provided the defence of each is substantially the same. But when the defendants are not jointly liable or united in interest, and their separate defences are of a nature that cannot be joined, I know of no rule which deprives either of his costs in case of a recovery by both. The fact of their employing the same attorney is a circumstance which will induce the court to look into the case closely, for the purpose of discovering whether the separate defences were necessary, and were interposed in good faith, but it has no other effect. (Castallanos a. Beauville, 2 Sandf., 677; Wilbur a. Wiltsey, 13 How. Pr. R 506; Walker a. Russell, 16 Ib.; Danfield a. Gayler, 12 Wend, 236.) In the present instance the action is brought to dissolve a copartnership, and for an accounting between the parties. A separate defence was not necessary to protect the individual Sands a. Roberts. rights of the defendants, and under the circumstances shown by the pleadings, the clerk very properly allowed but one bill of costs. Motion for readjustment denied. SANDS a. ROBERTS. New York Common Pleas; at Chambers, February, 1859. After a receiver of defendant's property had been appointed, in proceedings supplementary to execution against the defendant instituted by plaintiff, the defendant's household furniture was destroyed by fire; the furniture was such as is exempt from execution, and therefore was not reached by the supplementary proceedings; but it was insured at the time of the fire. Held, that the claim for the insurance moneys was subsequently acquired property, which did not pass to, and could not be enforced by, the receiver. Motion to modify an order in supplementary proceedings. At the time that the defendant was enjoined by an order in supplementary proceedings, from interfering with his property, and a receiver thereof appointed, he was owner of household furniture to the value of from three hundred to six hundred dollars, and which he claimed to be exempt by law from execution. This was subsequently destroyed by fire. It was insured, and he moved for an order modifying the order restraining him, so as to permit him to make and present to the insurance company proof of his loss, and to apply the insurance moneys to replacing the articles exempt from execution, which had been destroyed. The motion was granted, so far as to allow him to collect the moneys, and the residue of the motion was reserved to be brought on upon two day's notice. This he now did, and asked for an order allowing him to appropriate the moneys in replacing the furniture. W. H. Wait, for the motion. Sands a. Roberts. Lewis Johnson, opposed. HILTON, J.-The supplementary order for the defendant's examination was granted August 6, 1858, and on the 24th of the same month a receiver was appointed under the proceedings thus instituted. About September 1, 1858, the defendant's household furniture, which was by law exempt from execution, and could not be reached under these proceedings, was destroyed by fire, whereby the Astor Fire Insurance Company became indebted to him to the extent of its value, under a policy or contract of insurance issued by them in respect to it. I am asked upon this motion, to which the plaintiffs and defendant alone are parties, to declare who is entitled to the moneys arising upon this policy. As I cannot perceive how the money can be reached by the present proceeding, it seems quite unnecessary for me to express any opinion upon the question, whether the proceeds of the furniture, or the indebtedness arising out of its destruction by fire, is subject to the same exemption as the furniture was, at the time these proceedings were commenced. A proceeding of this character only reaches property in the possession of the defendant at the time of the service upon him of the order for his examination; and on the appointment of the receiver, all the defendant's property and effects, including debts and choses in action, pass without any assignment (Porter a. Williams, 5 Seld., 141), for the purpose of being applied in payment of the judgment against him. It does not, however, affect property subsequently acquired, or a debt which afterwards arises. To reach either, new proceedings are necessary. As the claim in this case against the insurance company arose subsequent to the appointment of the receiver, it seems quite clear that no interest in it passed to him, and the plaintiffs not being in a position to raise any question in respect to it, I cannot do otherwise than dismiss the application. Roberts a. Sykes. ROBERTS a. SYKES. Supreme Court, First District; Special Term, April, 1859. CAUSE OF ACTION.-STATUTE OF LIMITATIONS.-PLEDGE. Between pledgor and pledgee, a cause of action for an accounting and redemption of a pledge accrues and the statute of limitations attaches, at the time when the pledgor is entitled to redeem the pledge. The fact that the pledgor subsequently receives the increase or profits of the thing pledged, does not, in the absence of a special agreement to account therefor, constitute a new cause of action, or affect the computation of the time of the limitation. The plaintiff transferred to D. as security for the payment of the plaintiff's note, which fell due on the 9th of October, 1840, twenty shares of a certain stock. At maturity of the note he did not pay it, nor ask for a re-transfer of the stock. The stock was subject to an assessment, which being subsequently called for, D. paid it. Afterwards, successive dividends upon the stock were declared in 1847, 1852, and 1855, respectively, payable in newly issued stock, which D. received. Held, that the plaintiff's cause of action against D., or his representatives, for an accounting and a transfer of the balance of stock after payment of the note, the calls paid by D., and interest, was barred by the statute of limitations on the 9th October, 1856, if not before. It seems, that the cause of action accrued at the maturity of the note, and that the ten years' limitation prescribed by the Revised Statutes for trusts not cognizable at law, commenced running from that time. It is not to be presumed for the sake of taking the case out of the statute, that the parties mutually agreed that D., the pledgee, might keep the stock until he was repaid by the dividends. Trial by the court. The facts are stated in the opinion. T. Burrall, for plaintiff. F. R. Tillou, for defendants. SUTHERLAND, J.-The plaintiff, on or about the 3d day of April, 1840, gave his note to John B. Desdoity for $500, with interest, payable at six months, and at or about the time of the making and delivery of said note, transferred to Desdoity abso Roberts a. Sykes. lutely, in terms on the books of the company, twenty shares of the capital stock of the Manhattan Gas Light Company; and at the same time Desdoity gave the plaintiff a receipt for the twenty shares of stock, stating that the same was received as collateral security for the payment of the note, and containing an express promise on the part of Desdoity to transfer the shares of stock to the plaintiff on payment of the note. The plaintiff did not pay the note when it became due, nor ask for a re-transfer of the stock, and Desdoity retained it. When the stock was transferred to Desdoity, only $27 per share had been paid on it, and it was subject to a call of $23 per share, on the payment of which it would be full stock. This call was made on Desdoity as the holder of the stock, and he paid the $23 per share, making $460. Subsequently there was from time to time three several increases of the stock, or additional stock declared and distributed among the holders of the original scrip, so that each stockholder at each increase received as many shares as he then held. Desdoity, as the holder of the twenty shares of original stock, took this increase or additional stock, and after having, in 1854, transferred to third parties forty shares thereof, had, in 1855, at the time of his death, forty shares of stock. The first increase was in 1847, the second in 1852, and the third in 1855. Desdoity never had any stock in the company, which did not grow out of the stock so transferred to him by the plaintiff. Desdoity from time to time received dividends upon the stock, and paid from time to time various sums for calls, and on account of the new scrip. It sufficiently appears from the proofs, that after deducting the $500 note of the plaintiff, and the interest, there would have been, at the time of Desdoity's death in November, 1855, a considerable balance in his hands, over and above the disbursements and payments made by him on account of the stock. There is no allegation in the complaint, nor is there any evidence, that the plaintiff ever paid or offered to pay the note, or demanded the note or a transfer of the stock, otherwise than it is alleged in the complaint that on or before the 1st July, 1852, Desdoity had received in dividends on the stock, and from sales of portions thereof, over and above what he had paid for instal |