
    Walter Althause, Respondent, v. Giroux Consolidated Mines Company, Appellant.
    First Department,
    May 24, 1912.
    Practice —penalty for failure to exhibit transfer book of corporation — intervention of trustee in bankruptcy of plaintiff pending appeal — disposition of proceeds.
    Where, before the entry of judgment in an action against a local transfer agent of a foreign corporation to recover a penalty under section -53 of the Stock Corporation Law (Laws of 1892, chap. 688, as amd. by Laws df 1897, chap. 384) for a refusal to exhibit to a stockholder the stock book and list of stockholders of the corporation, the plaintiff was adjudicated a voluntary bankrupt and a trustee appointed, such trustee, after the entry of judgment in favor of the plaintiff and pending an appeal therefrom, should not be permitted to intervene in behalf of the creditors of the plaintiff.
    If such judgment should be affirmed, however, the trustee in bankruptcy may test the question as to whether the proceeds of the judgment should . be paid to him for the benefit of creditors or whether the plaintiff is entitled to them.
    Motion to allow Clarence F. Eldredge, as trustee in bankruptcy of the plaintiff, to intervene in this action in which an appeal is pending from a judgment in favor of the plaintiff.
    
      Maurice Meyer, for the petitioner, appellant.
    
      James A. Allen, for the respondent, opposed.
   Per Curiam:

This action was commenced in the year 1907 to recover a penalty under section 53 of the Stock Corporation Law (Gen. Laws, chap. 36 [Laws of 1892, chap. 688], as amd. by Laws of 1897, chap. 384), now section 33 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61), which provides that a transfer agent in this State of a foreign stock corporation, except as therein stated, shall, for every violation of that section, forfeit the sum of two hundred and fifty dollars to be recovered by the person to whom such refusal was made,” the refusal being to exhibit to a stockholder the stock book, which. contains a list of the stockholders of the corporation as therein prescribed. While this action was pending but before judgment was entered the plaintiff filed a voluntary petition in bankruptcy in the District Court of the United States for the district of Massachusetts and in pursuance thereof the plaintiff was duly adjudicated a bankrupt, and on November 22, 1910, the petitioner was appointed his trustee in bankruptcy and is still acting as such. Subsequent to such adjudication and the selection of the petitioner as trustee, and on March 16, 1911, this action was brought on for trial and plaintiff recovered a judgment in the Municipal Court which was affirmed by the Appellate Term, whereupon an appeal was allowed to this court, which appeal is still pending and undisposed of. Subsequently the petitioner presented a petition to the United States District Court in Bankruptcy in Massachusetts and obtained an order authorizing the petitioner to intervene in this action and take such action concerning the same as law and justice and the rights of creditors of the bankrupt may require. In opposition to this petition the attorney for the plaintiff submits an affidavit stating that he has received no fees for his services in this action and insists that the right of action being to recover a penalty was not transferable and did not pass to the trustee in bankruptcy and also claiming a lien on the recovery for his fees.

Without passing upon the question whether the trustee in bankruptcy is entitled to the proceeds of this judgment if it is affirmed, we think this application should be now denied. No application was made by the trustee in bankruptcy to intervene before the trial of the action in the Municipal Court or pending the appeal to the Appellate Term. The attorney for the plaintiff has undoubtedly a lien upon the recovery for his fees and we think he should be allowed to conduct this appeal. In the event that the judgment is affirmed the trustee in bankruptcy can take such action as he shall be advised to test the question as to whether the proceeds of the judgment should be paid to him for the benefit of creditors or whether the plaintiff is entitled to receive the proceeds.

The motion is, therefore, denied, without costs. '

Present —- Ingraham, P. J., McLaughlin, Clarice, Scott and Dowling, JJ.

Motion denied, without costs. Order to be settled on notice.  