20 Misc. 315 | N.Y. App. Term. | 1897
The Stock Corporation Law of this state prescribes that each corporation shall keep in its office correct hooks of account, of all its business and transactions and a book to be known as the stock-book, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their places of residence, the number of shares of stock held by them respectively, the day respectively when they became the owners thereof and the amount paid thereon; and that the stock-
■The only question upon this appeal is whether a stockholder 'suing for damages under the above statute can recover the costs and counsel fees of mandamus proceedings by which he compelled the corporation and its officers to allow, an inspection -of 'the books. The trial court allowed the plaintiff $513.22 for the legal expenses of maintaining those proceedings, but the current of authorities is against such a-recovery, counsel fees and expenses incurred by the plaintiff in the prosecution of one action not being recoverable in another action against the same party; the statutory costs and allowance awarded a successful party in an action being deemed in law a sufficient indemnity for the prosecution or defense of his right therein.
The case is different where a bond is given upon obtaining an injunction, attachment and the like, to indemnify a defendant against damage from an unfounded prosecution of such remedies. There may be little ground for the distinction since the injured party is as much forced to resor.t to law .by the refusal of his adversary to accord his rights as he is by being compelled to defend an unjust action; but the courts have.invariably made the distinction for a good reason — to diminish the burden's and uncertainty of litigation; and the law may be regarded as settled. Stewart v. Sonneborn, 98 U. S. 187; Hicks v. Foster, 13 Barb. 663; Bishop v. Hendrick, 82 Hun, 323.
In the case last cited damages: were claimed under the statute which allows a recovery against an executor de son tort of all damages caused by his acts to the éstate of the deceased. 2 R. S. 449, § 17. It was sought to recover the legal expenses of certain actions and proceedings against the defendant for wrongfully with•holding property, resisting proceedings for contempt and actions
The case of Mattlage v. N. Y. Elevated R. Co., 17 N. Y. Supp. 537, was referred to in the above opinion and the ruling of the General Term of the Common Pleas quoted with approval: “ We know of no rule of law by, which a party can recover from his opponent the counsel fees paid on the argument of an appeal by way of damages over and above those allowed as costs, except by virtue of an express contract, as when a bond or undertaking has been given on procuring an injunction, attachment, etc. In any other case, if a party chooses to pay more than the amount allowed by law as costs, he must do so at his own expense.” In an action against one usurping an office, when the statute allows damages sustained in consequence of this usurpation, it has been held that counsel fees and expenses incurred in ousting the defendant from office cannot be recovered in an action for such damages. Palmer v. Darby,
Legal expenses are. recoverable as damages when incurred in proceedings táken by the injured party to prevent, or reduce, the damage which he -would incur by the continuance of the wrong which he has abated by resort to such proceedings. Expenses incurred to prevent or lessen damages are recoverable as damages. Sutherland on Damages, § 88; Sedgwick on Damages, §§ 215, 437 and 948; Hoffman v. Union Ferry Co., 68 N. Y. 385; Jewelers’ Agency v. Rothschild, 6 App. Div. 499. The latter case illustrates the. rule and its limitations. In an action tó punish defendants for contempt in violating an injunction against a'.certain publication, the expense of a new injunction which the plaintiff had to sue out against a corporation organized by thé original defendants, to prevent the continuance of the publication, was included in the-fine inflicted upon defendants for - disobeying the original injunction, In that caso the legal expenses allowed were incurred in an action brought expressly to restrain a continuance of the damage and for no other purpose. The mandamus proceeding of this plaintiff was not -instituted with that object, although it might have directly effected it; yet there is no evidence in the case that-any continuing damage was thereby prevented. In a general sense most, if not all, legal proceedings are taken with that object or have that result, but I apprehend it is only where the litigation is for the specific purpose, as in the case of injunction, that the rule above reférred to will be applied.
The judgment appealed from should be modified by reducing-the recovery to $50, and affirmed .for that amount,'without costs of this appeal or of the General Term of the City Court to either party.
McAdam and Bischoff, JJ., concur.
Judgment modified by reducing recovery to $50 and as so modified affirmed, without costs of appeal in this court or the City Court.