Holland v. Presley

Plaintiff, suing on behalf of himself and all other stockholders of the defendant corporation, none of whom joined him, recovered a judgment for $149,575.79. On appeal to the Appellate Division; the judgment was reversed and the complaint dismissed. This determination- was affirmed by the Court of Appeals. Plaintiff now moves to be relieved of the payment of costs imposed against him by the Appellate Division in the sum of $3,008.68 and for a further order directing the corporate defendant to pay the same. The defendant corporation never authorized or consented to the bringing or prosecution of this action. Upon the facts presented, as well as on principle and authority, the motion must be denied. (14 C. J. § 1473, p. 948.) Sections 1481 and 1500 of the Civil Practice Act, relied on by plaintiff, are not applicable. Plaintiff, whose attorneys were originally awarded counsel fees and disbursements in the sum of $45,682.44, assumed “ all the risks that go with failure.” (Earl v. Brewer, 248 App. Div. 314, 317.) He has failed and is answerable for the costs imposed against him. Submit order accordingly fixing June twenty-ninth at ten a. m. as the time for the examination in supplementary proceedings.