In re Dunham

Headnote

Costs—in sound discretion of court in special proceedings—Code Civ. Pro„ §§ 3230, 8240.

This is an appeal taken by the New England Mutual Life Insurance Company from so much of an order as denied costs to appellant, on denying prayer of petitioner.

In September, 1881, the Odd Fellows’ Hall Association in the city of New York sold out all their property real and personal, and ceased to transact any business.

Dunham, a stockholder in the association, petitioned that he be paid his distributive share of the assets of the association out of its funds in the trust company on giving a bond for its return should the contingency arise of a certain mortgage (its only liability) being foreclosed and a deíiciéncy remain which the association might be called on to meet. The association demurred to the petition and the New England Mutual Life Insurance Co. answered it. The court gave the petitioner liberty to withdraw his petition or if he elected, the petition might be denied, but without costs. As an order was entered denying the petition without costs and from that part of the order the New England Mutual Life Insurance Company appeals.

The court at General Term said: “The sections of the Code of Civil Procedure, 3230 and 3240 leave the question of awarding or denying costs in proceedings of this nature to the discretion of the court. The discretion contemplated by the law is not a mere unreflecting caprice exercised in violation of right but a judicial discretion to be used ac-a

cording to the rules of law and equity. We do not find that this principle of law has been violated by the order, appealed from in this case.”