
    PIERSON v. CLARK.
    (Supreme Court, Appellate Division, Third Department.
    December 7, 1906.)
    Costs—Parties Liable.
    Under Laws 1896, p. 329, c. 376, authorizing the agent of the owner of milk cans to recover in his own name a penalty for their unlawful detention, plaintiff brought an action as the agent of persons who once owned cans detainedi, but had transferred them to a corporation of which they became stockholders; the plaintiff having notice thereof. Held, that such persons were not individually liable for the costs of plaintiff, within Code Civ. Proc. § 3247, making persons beneficially interested in an action brought by another liable for costs, the same as though they were the plaintiffs.
    Appeal from Special Term, Delaware County.
    Action by'Wellington S. Pierson against J. Emmet Clark. From an order taxing the costs upon dismissal against Francis McDermott and another, they appeal. Reversed.
    Argued before PARKER, P. J., and SMITH, CHESTER, KELLOGG, and COCHRANE, JJ. • this case that the injunction order in question is still unvacated. In that event the present action is brought in contempt of the injunction order, if that order applies. It has been held that, notwithstanding an action has been brought in contempt of an order of injunction, the fact of such contempt is no defense to the action, and that the matter of the contempt and the punishment therefor is one which concerns alone the court which granted the order. Wilkinson v. Fire Insurance Co., 72 N. Y. 499, 28 Am. Rep. 166. At the same time it is quite apparent to me that the injunction clause in the order appointing the receiver was simply auxiliary to the appointment of the receiver and covered only such property of the defendant judgment debtor, whether tangible or choses in action, as was Vested in the receiver by virtue of the order appointing him. It has been held repeatedly that all injunction orders are to be construed in favor of the purpose sought to be subserved by the granting of the order, and that, no matter how general the terms of the order in question, it was not to be construed in such a manner as to prevent any action on the part of the party enjoined which in no wise concerned the party procuring the injunction or which would have redounded to the advantage of such party. Wilkinson v. Fire Insurance Co., 72 N. Y. 499, 28 Am. Rep. 166; Van Wagonen v. Terpenning, 122 N. Y. 222, 25 N. E. 254. Notwithstanding the general language of this injunction order, it is quite apparent that it would not have restrained the action of Richard Gibbons as an executor, or as an administrator, or as the trustee of an express trust. Neither "would it have restrained his action as a surviving partner of the firm of M. Gibbons & Son, unless his legal title to the choses in action of M. Gibbons & Son was of such a character as to be divested from him and, transferred to the receiver by virtue of the entry of the order in question.
    
      Alexander Neish, for appellants.
    George W. Youmans, for respondent.
   SMITH, J.

This action was brought by plaintiff January 25, 1901, under section 29 of the domestic commerce law (chapter 376, p. 329, of the Laws of 1896), for the alleged unlawful detention of milk cans by the defendant J. Emmet Clark, said to be owned by the above-named parties. The complaint demanded judgment for the penalty of $50 each for seven milk cans. The defense was a general denial. Upon the tridi the complaint was dismissed, with costs. From the judgment entered, appeal was taken to the Appellate Division, wherein the judgment was affirmed, with costs. After an execution for said costs against the plaintiff had been returned unsatisfied, the defendant makes this motion to compel these appellants and several others to pay the costs which he was unable to collect from the plaintiff. The respondent claims the right to tlje order under section 3247 of the Code of Civil Procedure, claiming that these appellants were beneficially interested in the action. The Special Term charged the costs upon these appellants, and from the order made this appeal has been taken.

In 1896 these appellants were the owners of milk cans, and gave to the plaintiff a power of attorney under which such an action could have been brought. In 1898, however, the McDermott-Bunger Dairy Company, a corporation, was formed, to which corporation these appellants transferred all of their milk cans, and which corporation was the absolute owner of the milk cans at the time of the bringing of this action. These appellants, upon the formation of the corporation, became officers thereof, and thereafter conducted the business in the name of the corporation. Of these facts this plaintiff had full notice. Upon July 9, 1900, the following letter was sent to the plaintiff:

“Form 30. Order 84.
“Office of McDermott-Bunger Dairy Co., 527 West 38th Street.
“New York, July 9th, 1900. “Mr. W. Pierson, 502 Broadway, Brooklyn, N. Y.
“Dear Sir: We have just been informed by Mr. Bell, our manager at Ham-den, that a Mr. E. Clark (the bob-veal man of Hamden) has been using our cans for swill.
“He has been warned by our manager, but has taken no notice of the same.
“We would like that you begin action against him at once.
“Very respectfully yours, McDermott-Bunger Dairy Co., J. S. W.”

Thereafter this action was begun, which resulted in the dismissal of the complaint.

The interest of these appellants appears to have been that only of stockholders in the corporation, which directed the prosecution and which itself was beneficially interested therein. Any direction as to the prosecution of the action supplemental to the letter of July 9th must be presumed to have been given officially, and not individually. These appellants were not at that time as individuals the owners of the milk cans, and had no authority as individuals to direct the prosecution. They were not beneficially interested, within the provisions of the Code, so as to become liable for the costs of this action.

The order should therefore be reversed, with costs, and the motion denied, with costs.

All concur except PARKER, P. J., not voting.  