p. 419In the Matter of the Application of the Trustees of The Importers and Grocers’ Exchange of New York for a Voluntary Dissolution. Henry F. Hitch et al., Appellants. Henry E. Hawley et al., Respondents.(Decided December 19th, 1889.)Headnote
An allowance for expenses of unsuccessful objecting members of a corporation in the proceedings for a dissolution may be made out of funds in the hands of the receiver. The propriety of making such -allowance may be determined by the court, upon settlement of- the final order of dissolution; a reference is not necessary.Appeal from an order of this court appointing a referee to take proof and report what allowance should be made to attorneys for objectors on the denial of an application for the voluntary dissolution of a corporation under sections 2419— 2481 of the Code.
John Proctor Clarke, for appellants.
Frank E. Blackwell, for respondents.
As we have reversed the order denying the application for a dissolution of the corporation, we might simply reverse the order now appealed from without passing upon the question whether, in a proceeding under sections 2419—2431 of the Code, the court has power to make an allowance beyond a sum equal to statutory costs in actions. As the question must arise, however, upon the entry of the final order for'dissolution, it is proper to determine it now. As against one party to this proceeding in favor of the other party, we could allow only taxable costs as in an action, this being a special proceeding ; but upon the appointment of a receiver upon dissolution of the corporation, the court is authorized to provide for the expenses of the proceeding out of the fund which will come into the receiver’s hands. It has been held
p. 420;that the unsuccessful trustees who have opposed a proceeding to dissolve a corporation, under the conviction that it was solvent and had a right to conduct its own business, and who had probable cause and reasonable ground for their opposition, Avere justified, as trustees for all parties interested, in retaining counsel to protect the corporate existence and to repel the attack which they regarded as unfounded, and that such reasonable expenses as they incurred for those purposes might be allowed to them, it being entirely in the discretion of the court in administering the fund to determine what, if any, should be a reasonable sum to be alloAved; alloAvances for the purpose being within the province of the court holding the fund
(Barnes v.
IFewcombe, 89 N. Y. 108 ). There seems to be therefore no question of authority to make, to the prevailing as well as the objecting party, in a proper case, an allowance in these proceedings. I think the propriety of an alloAvance and the amount might be determined by the court, without a reference, upon settlement of the final order.
The order appealed from must be reversed.
Yak Hoesen and Bookstaver, JJ., concurred.
Order reversed.