#### The People *ex rel.*Benjamin W. Winans *et al.,*App’lts, *v.*Ambrose T. Adams *et al.,*Resp’ts.1

*(Court of Appeals,*

*Filed June 23, 1891.)*

Costs—Extra allowance—Code Crv., Pro., § 1956—Usurpation op OFFICE.

Where the complaint in an action to oust defendants from an office in a domestic corporation and put relators in possession thereof, demands that each defendant shall pay a fine of §2,000 as provided by Code Civ. Pro., § 1956, this does not justify the court upon the complaint being dismissed in granting defendants an extra allowance based upon the amount of such fine.

Appeal from judgment of the supreme court, general term, first department, affirming order granting defendants an extra allowance of $350.

*Wm. H.*Arnoux, for app’lts; *Hoffman Miller,*for resp’ts.

1

 Reversing 37 N. Y. State Rep., 603.

O’Brien, J.

This was an action brought by the attorney general under §§ 1948 and 1949 of the Code of Civil Procedure. The complaint alleges that on the 7th day of April, 1890, the relators, ten in number, were duly elected, respectively, wardens and vestrymen of the church of the Holy Nativity, a Protestant Episcopal church in the city of New York.

That the defendants Adams and Townsend unlawfully intruded into the office of warden and the other defendants into the office of vestrymen of said church, and were unlawfully holding these offices in violation of the rights of the relators. Judgment was demanded that the defendants were not entitled to the office into which they respectively had intruded, and that they be ousted and excluded therefrom, and that the relators be put in possession of the offices to which they were respectively elected as alleged. Costs were demanded against the defendants, and that each of them pay to the People of the State of New York a fine of $2,000. On the trial the complaint was dismissed, with costs, and an order made granting the defendants an extra allowance of $350. The only basis for the allowance was the demand that each defendant be fined $2,000, and as there were ten defendants, it was held that the complaint contained a claim against the defendants of $20,000 in the aggregate. The order has been affirmed at general term.

The only question presented by the appeal is whether the court had power to grant an allowance in the action. Section 3253 of the Code of Civil Procedure confers power on the court, in its discretion, to award to the successful party a sum not exceeding five per centum upon the sum recovered *or claimed,*or the value *881of the subject matter involved. And § 1956 provides that in actions such as this the court may in its discretion also award that the defendants pay a fine to the people of the state not exceeding $2,000, and if such fine is imposed execution may be issued upon the judgment, and when the fine is collected it must be paid into the treasury of the state. The relators could have no interest in the fine, and no one could demand that it be imposed as a legal right. The cause of action or claim set forth in the complaint was the intrusion of the defendants into an office in a domestic corporation, from which it was sought to oust them, and to put the relators in possession thereof. The fine was a mere incident that might or might not follow the success of the action, resting wholly in the discretion of the court with reference to the facts and circumstances of the case. It was no part of the claim or cause of action. It was not necessary to demand it in the complaint, as the court could have imposed it whether demanded or not upon a proper state of facts. By demanding it the plaintiff did not change the character of the action or engraft upon the complaint any element of a pecuniary claim within the meaning of that term as used in the section of the Code above referred to. There was no power in this; case to grant to the defendants an extra allowance, except upon the basis of the value of the claim or subject matter involved in the action and litigated directly and not incidentally. *Atlantic Dock Co.*v. *Libby,*45 N. Y., 499; *Adams*v. *Arkenburgh,*106 id., 615; 11 N. Y. State Rep., 121; *Conaughty*v. *Sar. Co. Bank,*92 N. Y., 404.

The action was brought to try the title to certain elective offices in a religious corporation. It does not appear that these offices were of any value in themselves, or that there were any emoluments or pecuniary advantages attached to them, and hence it cannot be said that the subject matter of the action was of any value whatever. The entirely unnecessary demand that each of the ten defendants be fined $2,000 was not a claim that could form the basis of an allowance any more than would a request at the trial that the discretion of the court in that regard be exercised.

The order of the general and special terms should be reversed, with costs in all courts.

All concur, except Finch, J., absent