Williams a. Hernon.

WILLIAMS a. HERNON.

Supreme Court, First District; General Term, Nov., 1861. COSTS. ALLOWANCE IN PARTITION AND OTHER CASES MENTIONED IN SECTION 308 OF THE CODE.

Under the provisions of sections 308 and 309 of the Code, as the latter is amended by the Laws of 1859 (969, ch. 468, § 8), the court have no discretion to allow, as a court of equity, any extra costs in actions specified in section 308, except the allowance fixed in that section.

The allowance fixed in that section cannot be made to any other party than the plaintiff.

Appeal from an order at special term.

BY THE COURT.*-CLERKE, P. J.-Section 308 of the Code provides that there shall be allowed to the plaintiff, and only to the plaintiff, upon the recovery of judgment by him in any action for the partition of real property, or for the foreclosure of a mortgage, or in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, &c., a percentage on the recovery, &c., which cannot exceed sixty dollars. By this provision for the plaintiff exclusively, it may be safely inferred, that the Legislature intended that defendants in the actions specified in the section should not be entitled to any extra allowance.

In section 309, however, as amended in 1858, it was provided that the court may also "in its discretion make a further allowance to any party, not exceeding five per cent. upon the amount of the recovery or claim, or subject-matter involved."

If this remained the law, as I erroneously supposed in my late opinion in Hotaling a. Marsh,† the court would, of course,

* Present, CLERKE, P. J., INGRAHAM and LEONARD, JJ.

In HOTALING a. MARSH (Supreme Court, First District; At Chambers, November, 1861), it was held, that although the court has no discretionary power to allow in actions mentioned in section 308 of the Code, any more costs than the Code prescribes, yet in any action mentioned in that section,-e. g., a partition action,— -an allowance of five per cent. on the recovery of any party may be granted.

Williams a. Hernon.

have authority to make an allowance to the defendants in the case now before us. But a very serious alteration, which until very recently totally escaped my notice, was made by the Legislature in 1859 (Laws of 1859, 970), by the erasure of the word "and," and the substitution of the word "except," so that the passage now reads "in difficult and extraordinary cases, when a trial has been had, except in any of the actions or proceedings specified in section 308, the court may also in its discretion make a further allowance to any party not exceeding five per cent, &c." By this last amendment, the authority of the court in making extra allowances is left, as before 1858, to depend solely on section 308; and this, as we have seen, authorizes an allowance only to the plaintiff, and as I have remarked in Hotaling a. Marsh, by necessary implication, depriving the court in the actions mentioned in that section, of any equitable discretion in allowing extra costs to any party.

The defendants in this action, therefore, are not entitled to any extra allowance, and the order of the special term should be affirmed, without costs.

CLERKE, J.-I do not think, in any of the actions mentioned in section 308 of the Code, of which this is one, that we retain any discretion, as a court of equity, in allowing more costs than the Code prescribes. By this section the plaintiff, and only the plaintiff, is entitled to an amount in the whole not exceeding sixty dollars. By the amendment, however, of 1858 (Laws of 1858, 493, § 12), the court is authorized, in difficult and extraordinary cases, when a trial has been had, and in any of the actions or proceedings specified in section 308, also, in its discretion, to "make a further allowance to any party, not exceeding five per cent. upon the amount of the recovery or claim, or subject-matter involved."

This amendment, I believe, has not been repealed; and by virtue of it, and not by any inherent general power of the court in equity cases (if, indeed, a partitionsuit can be strictly called an equity suit), I have authority to make additional allowances to the plaintiffs or any of the defendants.

To the plaintiffs I allow $150.

To the infant defendants Frank and Valentine Marsh, $150.

To Ellen Campbell, defendant, $50.

To the infant defendants Franklin and Harriett Ann Peters, $50.

To the executors, $50.

To the defendants Harriet Peters and Harriet Ann Marsh, $150.

Rodgers a. Fletcher.

RODGERS a. FLETCHER.

Supreme Court, Third District; General Term, December, 1860.

EVIDENCE. OPINIONS OF WITNESSES.-OBJECTIONS.

The opinion of a witness as to the amount of damage caused by a trespass, is not competent evidence.

To a question calling merely for such an opinion, and not for the facts upon which it is based, a general objection is sufficient.

Appeal from the judgment of a County Court, affirming a justice's judgment.

One Rychen hired a part of the defendant's house. While he occupied it, the defendant cut a door into one of Rychen's rooms. He assigned his cause of action for the injury, to the plaintiff; and, being examined as a witness, was asked by the plaintiff, "How much damage did you sustain in this operation of the work?" The defendant objected in general terms, but was overruled. Judgment was rendered in favor of the plaintiff for $40. The defendant appealed to the County Court, and from thence to this court.

J. Holmes, for the appellant.-The court erred in allowing the witness Rychen to testify to the amount of damage. (Morehouse a. Mathews, 2 Comst., 514; Norman a. Wells, 17 Wend., 136; Lincoln a. S. & S. R. R. Co., 23 Ib., 425; Paige a. Hazard, 5 Hill, 603.)

Lottridge & Landon, for the respondent.-I. The question was a legal and proper question. (Morehouse a. Mathews, 2 Comst., 514.)

II. The objection must state the grounds of the objection, or it will be regarded as no objection at all. (Dunham a. Simmons, 3 Hill, 609; Whiteside a. Jackson, 1 Wend., 418; Potter a. Deyo, 19 Ib., 361.)

Ogden a. Rollo.

BY THE COURT.*-GOULD, J.-The evidence, as to amount of damages, was called out by this question, "How much damage did you sustain in this operation of the work?" To this question the defendant interposed a general objection, specifying no ground therefor; and the witness answered, "the damage for the two acts was $50." There is no point of view in which this testimony was admissible. It is a mere opinion; and the question calls for a mere opinion in gross. No facts were asked for; none were given. (2 Comst., 514.)

The plaintiff claims that the objection was not specific, and therefore not good; citing 3 Hill, 609. But that was a case where an untenable ground was assigned for the objection; and the case decides only that, having assigned a ground the party must be held to that; and if it was an insufficient ground, he should not be at liberty to take up a new one on the argument. But in a later case (5 Hill, 603) precisely such a general objection was held good, in a case where it was manifest that the question must call for an opinion. It would seem a case just like the present, and fully sustains a reversal of the judgment in this

case.

Judgment of County Court and justice reversed.

OGDEN a. ROLLO.

Supreme Court, First District; General Term, Sept., 1861. COMPLAINT.-LIABILITY OF TRUSTEES OF MONEYED CORPORATIONS.

A complaint against a trustee of a moneyed corporation, seeking to make him personally liable for a debt of the corporation, under 1 Rev. Stat., 592, § 10, is bad on demurrer, if it shows that the wrongful acts of the defendant were committed before the corporation incurred any obligation to the plaintiff.

Appeal from an order overruling a demurrer.

* Present, GOULD, HOGEBOOM, and PECKHAM, JJ.

Ogden a. Rollo.

This was an action brought by the plaintiff as a creditor of an insurance company, and seeking to hold the defendant, who had been one of their trustees, liable personally for his claim against the company, on the ground of negligence and mismanagement on the part of the trustees. The complaint will be found appended to our report of Andrews a. Murray (9 Ante, 8). The defendant demurred to each statement of the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled at special term.

E. W. Chester, for the appellant.-I. The act charged, that defendant being present, the board of trustees made dividends to the persons holding policies of the corporation which were not made from surplus profits, is not in violation of the statute, the dividend forbidden being one among stockholders and not among creditors. There is no pretence in the complaint that this is a mutual insurance company.

II. The presence of the defendant does not make him liable. He must himself violate the act or be concerned in its violation. He cannot be made liable by his mere presence. (§ 10.)

III. The alleged assignments made by the board in clause four of the complaint, do not constitute a cause of action against the defendant. 1. Because not alleged to have been made between the 15th of September, 1855, and 1st of July, 1856, nor while defendant was a member of the board. 2. Because no such assignment, &c., is charged as forbidden by section 8, and as made void by section 9. 3. Because it is not alleged that defendant did the act or was concerned in it, that he voted for it or did not vote against it, nor in fact that he had any vote. 4. Because it is not alleged that plaintiff was then a creditor.

IV. The second count fails to set forth the necessary facts to constitute a cause of action. An insolvency of the corporation, however caused, does not give a right of action against an individual director, under any statute of the State existing at the time mentioned in the complaint, to recover what he may lose or fail to get by reason of that insolvency.

V. None of the acts or neglects charged against the defendant as having produced the insolvency, give, under this statute, or any other statute, a right of action to recover by a creditor of the company his loss of a director.