People ex rel. Winans et al. v. Adams et al.(Supreme Court, General Term, First Department.Headnote
Costs—Extra Allowance.Where the complaint in an action of ouster demands that each of the alleged usurpers pay the fine of $3,000 imposed under Code Civil Proc. N. Y. § 1956, there-is a basis for an extra allowance under Code, § 3353, subd. 3, giving the court power to grant an allowance, not exceeding 5 per cent., upon the sum recovered “or claimed. ”
Appeal from circuit court, New York county.
This action was brought to set aside an election of the Church of the Holy Nativity, held in April, 1890, at which election these plaintiffs claimed to have been duly elected wardens and vestrymen of said church. The proceedings were instituted under sections 1948, 1949, et seq. of the Code of Civil Procedure against the defendants, who it was claimed had unlawfully usurped and intruded into certain rights and privileges which legally belonged to the plaintiffs and relators herein, as wardens and vestrymen of the said Church of the Holy Nativity. On the trial the complaint was dismissed, and the exceptions were ordered heard at general term. Subsequently defendants’ attorneys moved for an extrji allowance on the papers printed on this appeal, and the justice granted an extra allowance of $350, handing down the follow- - ing memorandum: “By Beach, J. The People'ex rel. Winans v. Adams et al. The complaint,, additional to other relief, demands a judgment that each of defendants pay to the people of the state of New York a fine of two thousand dollars. This is an 1 amount claimed ’ aggregating twenty thousand dollars, and may be made the basis for an additional allowance under section 3253, Code of Civil Procedure. An allowance of three hundred and fifty dollars is granted.” Code Civil Proc. N. Y. § 3253, is as follows: “In an action brought to foreclose, ■ * * * or in a difficult and extraordinary case, where a defense has been interposed in any action, the court may also, in its discretion, award to any party a further sum, as follows: * * *. (2) In any other case specified in this section a sum not exceeding five per-centum upon the sum recovered or claimed, or the value of the subject-matter involved.” From the order entered upon this decision the plaintiffs appeal.
Argued before Van Brunt, P. J., and Brady and Daniels, JJ.Chas. F. Tabor, Atty. Gen., [W. H. Arnoux and Wm. J. Lardner, of counsel,) for appellants. Miller, Peehham & Dixon, for respondents.
This is an action against the defendants as usurpers, and its object is to oust them. The relief demanded is not only this, but that others named be declared entitled to the offices they usurped, and that each of the usurpers pay a fine of $2,000. The fine could be imposed under section 1956 ' of the Code, and the defendants, having this additional claim made against them, were justified in making any and all preparation to resist it. The proof required to warrant such a fine, it has been said, must be of some criminal or grossly improper act in taking or holding the office, (People v. Nolan, 65 How. Pr. 468 ;) and hence the claim' was not only grave in aspect, but to an amount aggregating $20,000, as said by the learned justice in the court below; and the basis, therefore, for an additional allowance under section 3253 of the Code. If the plaintiffs did not intend to essay to recover the sum named it should not have been claimed in the complaint. It is there, however, and must bear the ordinary vicissitudes of legal proceedings. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.