
    Wellington S. Pierson, Plaintiff, v. J. Emmet Clark, Respondent. Francis McDermott and C. H. Bunger, Appellants.
    Third Department,
    December 7, 1906.
    . Costs — action for penalty for detaining milk cans owned by corporation — when former owners of cans not chargeable with costs.
    When former owners of milk cans have sold them to a corporation of which they .becazne officers, and the corporation directs its agent to sue for the statutory penalty for an unlawful detention of the cans, a defendant who succeeds on 'trial is not entitled to charge the former owners with the costs under section 3347 of the Code of Civil Procedure as being beneficially interested, for the action was brought in behalf of the corporation and not the former owners of the cans.
    Appeal by Francis McDermott and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 25th day of August, 1906, adjudging that the appellants pay to the defendant the costs of the above-entitled action.
    
      Alexander Neish, for the appellants.
    
      George W. Youmans, for the respondent.
   Smith, J.:

This action was brought by plaintiff January 25,1901, under section 29 of the. Domestic Commerce Law (Laws of 1896, chap. 376, as amd. by Laws of 1900, chap. 543) 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 fifty dollars each for seven milk cans. The defense was a general denial. Upon the trial the complaint was dismissed, with costs. From the judgment entered appeal was ✓taken to the Appellate Division, wherein the judgment was affirmed, with costs. (95 App. Div. 620.) 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 the 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 óf 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,
“ FTew York, July 9th, 1900.
“ Mr. W. Pierson,
“ 502 Broadway, Brooklyn, FT. Y. :
“Dear Sir.— We have just heen informed by Mr. Bell, our manager at Hamden, 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,
“, MoDERMOTT-BUFfGER DAIRY CO.
“ J. S. W.”

Thereafter this action was begun, which resulted in a 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 ninth 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, without costs.

All concurred, except Parker, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.  