People v. Rochester Dime Savings & Loan Ass'n

Majority

p. 350

The People of the State of New York, Appellant, v. The Rochester Dime Savings and Loan Association, Respondent.

Headnote

JSxtra, allowance — action to dissolve a corporation — an allowance may be based upon the franchise of a corporation where its value is shown — Code of Civil Procedure, § 3353.

Tn an action brought by the Attorney-General against a saving and loan association (after an examination by the superintendent of Banks, and a report by him to the Attorney-General, who was of the opinion, derived therefrom), that the defendant should be restrained from the transaction of business, asking that its ' charter should be annulled; that a receiver should be appointed, and that a temporary injunction should be issued, the complaint was dismissed upon the merits, - with costs.

¡Subsequently a motion for an extra allowance was made upon affidavits showing that the franchise of the defendant was reasonably worth the sum of §30,000, and that the case was difficult and extraordinary, and an extra allowance of §1,000 was granted.

.JETeld, that the extra allowance was properly granted, but that its amount should be reduced to §500.

Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the.Monroe Special ‘Term and entered in the office of the clerk of the county of Mon:roe on the 2d day of March, 1896, granting the sum of $1,000 to the defendant as an additional allowance of costs.

Plaintiff’s complaint stated that the Superintendent of Banks had, :in March, 1891, caused an examination to be made of the books, man.•agement and affairs of the defendant, and that the Superintendent of Banks had reported to the Attorney-General the results of such -examination, and that the Attorney-Gen eral was of the opinion i( that the facts so reported and believed by him to exist, require that the defendant should be restrained from continuing to transact business ; that its charter should be annulled and a suitable person be ¡appointed receiver of said corporation to protect the property of said •corporation, for the benefit of. persons entitled thereto, and, pending such action or proceeding, that a temporary injunction should be issued.” The complaint also alleged that the- defendant is insolvent, unable to pay its debts, and has violated various provisions of the laws under which it ivas incorporated. ■ The complaint demanded judgment “ dissolving the defendant corporation and forfeiting its

p. 351

■corporate rights, privileges and franchises,'and perpetually enjoining and restraining the defendant, its trustees, officers and agents from •exercising any corporate powers, privileges and franchises, and from transferring, disposing of, or in any manner interfering with its property and assets,” etc.

An answer was served containing denials and setting up the status •of the defendant and its assets.

The issues were referred, tried, and the referee found as conclusion of law that the complaint herein be dismissed upon the merits, with •costs. An application was made to the Special Term for an order directing an extra allowance of costs. The Special Term granted ■an order allowing $1,000. Plaintiff appeals from the order.

Affidavits were read at the Special Term in which it was shown that the value of its franchise is reasonably the sum of $20,000,” and that the case was difficult and extraordinary; and a detailed' statement of the time spent in conducting the defense was given.

T. E. Hancock, Attorney-General, and W. E. Kisselburgh, Jr., for the appellant.

George W. Thomas and John Desmond, for the respondent.

In H. R. T. Co. v. W. T. & R. Co. ( 135 N. Y. 394 ) the subject-matter litigated was the right of the defendant to use the single trolley system, and in the course of the opinion Maynard, J., said : If the right sought to be perpetually enjoined has a money value, and there was any evidence in the moving pajiers tending to -.establish such value, the court had jurisdiction to entertain the motion, and it was its duty to exercise its discretion and dispose of the application upon its merits. We have examined the record sufficiently to satisfy us that there -was some proof of this character.” The court in that case reversed an order which denied the application.

In Hanover Fire Insurance Company v. Germania Fire Insurance Company ( 138 N. Y. 252 ) an action was brought to restrain the defendants from interfering with closing up the business of the New York Underwriters Agency, and the court held that no evidence was presented as to the value of the property right in the name,

p. 352

and, therefore, reversed an order which granted an extra allowance. Following the doctrine of the cases just alluded to, we are of the opinion that the Special Term properly held that this was a case for the application of the section of the Code which authorizes an extra allowance in a difficult and extraordinary case.

While we recognize the rule that, in cases coming within section 3253 of the Code of Civil Procedure, it is largely in the discretion of the' court as to the amount of allowance (Meyer Rubber Co. v. Lester Shoe Co., 92 Hun, 52 ), we are of the opinion, after an inspection of the affidavits used at the Special Term, that the order ‘should be modified by reducing the allowance from $1,000 to $500; We, therefore, modify the order.

All concurred.

Order modified by reducing the allowance to $500, and as modified affirmed, without costs.

Cases cited

Hanover Fire Insurance v. Germania Fire Insurance 138 N. Y. 252 N.Y. 1893-05-02 p. 351