People v. Masonic Guild and Mutual Benefit Association. was an assignee, it should be reversed, with $10 costs and disbursements. LAWRENCE, J., concurred. O'BRIEN, J. (concurring).—I concur in the conclusion reached that, as assignee, she had the same status as the original creditor, under section 2717 of the Code. Though there was no formal assignment, the learned surrogate rightfully says "the voluntary payment [by petitioner] of decedent's debts subrogated her to the rights of his creditors, and created an assignment to her of the respective amounts paid." PEOPLE ex rel. MEYER v. MASONIC GUILD AND MUTUAL BENEFIT ASSOCIATION. SUPREME COURT, SECOND DEPARTMENT, ORANGE COUNTY SPECIAL TERM; JANUARY, 1892. § 2007. Mandamus-when non-payment of costs awarded on motion for peremptory not punished as for contempt. Section 2007 of the Code of Civil Procedure, providing that a person required to pay costs in a special proceeding instituted by a state writ, except where a peremptory writ of mandamus is awarded after the issuance of an alternative mandamus, may be punished as for a contempt of the court awarding the costs if he fails to pay them, although not strictly a penal statute, is to be construed according to the same rules which apply to that class of enactments. A penal statute, where there is doubt, will not be so construed by People v. Masonic Guild and Mutual Benefit Association. the judiciary as to result in the infliction of a punishment which the legislature may not have intended. In a statute making a failure to pay the costs of a proceeding pun ishable as a contempt, permissive expressions should not be construed as mandatory and requiring the infliction of the punishment. The provisions of section 2007 of the Code of Civil Procedure that a person who institutes a proceeding by a state writ and fails to pay costs awarded against him may be punished as for a contempt confers upon the court discretionary power which the successful party in such a litigation may properly invoke, but which the court is at liberty to exercise or not according to the facts of the case, and particularly with reference to the ability of the defeated party to pay the costs awarded against him, and, it seems, that the intention of the legislature was to allow the court to enforce payment of costs in such a case by means of contempt proceedings if under all the circumstances it seemed proper to do so. (Decided January, 1892.) Motion by the defendant to punish the relator as for a contempt in failing to pay the costs of the proceeding. The relator obtained a judgment against the defendant, a mutual benefit association, and after a return of execution unsatisfied, moved at special term for an order that a peremptory writ of mandamus issue against defendant, directing it to levy an assessment on its members to pay the judgment. The motion was granted, and a peremptory mandamus issued in accordance with the order. This order was affirmed on appeal to the general term (see opinion, 58 Hun, 395). Upon appeal to the court of appeals the order of the general and special terms was reversed, and the motion denied with costs in all courts. The costs having been adjusted at $217.80, the same were demanded from the relator, who refused to pay them, and this motion was made. The relator thereupon claimed that the costs in this proceeding should be offset against his judgment, and that he was unable to pay them. People v. Masonic Guild and Mutual Benefit Association. Adolphus D. Pape and Samuel Campbell, for defendant and motion. John W. Lyon, for relator, opposed. The costs in this proceeding cannot be offset against the judgment. 1st. The judgment was obtained in Meyer v. The Masonic Guild and Mutual Benefit Association. 2d. In that judgment plaintiff has both costs and damages. In the present proceedings there are simply costs, and the costs belong to the attorney, and not to the party (In re Knapp, 85 N. Y. 284; Place v. Hayward, 8 Civ. Pro. Rep. 353; Tunstall v. Winton, 31 Hun, 220; S. C., 92 N. Y. 646; Marshall v. Meech, 51 N. Y. 140; Naylor v. Lane, 5 Civ. Pro. 149; Lachmeyer v. Lachmeyer, 17 Week. Dig. 310; Carlton v. Goldman, 5 Civ. Pro. Rep. 153). The attorney is regarded by virtue of his position as the equitable assignee of the judgment (Rooney v. Second Avenue R. R. Co., 18 N. Y. 360; Marshall v. Meech, 51 N. Y. 140; Tunstall v. Winton, 31 Hun, 220; Matter of Knapp, 85 N. Y. 284; Dimick v. Cooley, 3 Civ. Pro. 146. Chapter 16, Title II., of the Code of Civil Procedure, relates to "special proceedings instituted by state writs." Section 2007 provides for the punishment of a person who refuses to pay costs. Mandamus being a special proceeding, the practice of collecting costs as in an action is not applicable. BARTLETT, J.-Section 2007 of the Code of Civil Procedure provides that for the non-payment upon demand of the costs awarded by a final order made in a special proceeding instituted by a state writ (except where a peremptory writ of mandamus is awarded after the issuance of an alternative mandamus) the person required to pay the same may be punished for a contempt People v. Masonic Guild and Mutual Benefit Association. of the court awarding the costs, as if the final order was a final judgment of the court. In the present case the relator, without suing out any alternative writ, obtained a peremptory writ of mandamus against the defendant in the first instance, directing it to levy an assessment on its members to pay a money judgment. The order granting the peremptory writ was affirmed by the general term, but was reversed by the court of appeals, with costs. These costs amount to $217.80, and have been duly demanded of the relator, who has failed to pay them. Thereupon the defendant moves to punish him for contempt under the foregoing provisions of section 2007 of the Code. I do not find that this section has ever been judicially construed. No such provision as it contains appears to have existed in the law prior to the enactment of the second part of the present Code of Civil Procedure. The learned counsel for the defendant claims that it entitles his clients to enforce the collection of their costs by contempt proceedings against the relator as a matter of right, and furthermore that the costs awarded to the relator as plaintiff against the defendant, in the suit in which he recovered judgment, cannot be offset against the costs in this proceeding, inasmuch as the costs in this proceeding belong to the attorney, under the decision of the general term of the first department in the case of Tunstall v. Winton (31 Hun, 219). In the view which I take of section 2007, it will not be necessary to discuss the question of offset. While the section cannot be strictly called a penal statute, it nevertheless is to be construed according to the same rules which apply to that class of enactments. A penal statute where there is a doubt will not be so construed by the judiciary as to result in the infliction of a punishment which the legislature may not have intended (Wilton v. Wentworth, 5 Foster, N. H. 247). People v. Masonic Guild and Mutual Benefit Association. "Statutes of this class," says Mr. Sedgwick, in his wellknown treatise on statutory construction, "are to be fairly construed and faithfully applied, according to the intent of the legislature, without unwarrantable severity on the one hand or equally unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy (Sedgwick on Statutory Construction, 2d Edition, 287). Looking at section 2007 of the Code of Civil Procedure in this light, it is to be observed in the first place that the tendency of recent legislation in this state has been strongly adverse to imprisonment for debt. Furthermore it is to be considered, that the language of the section itself is not that the person required to pay the costs in a proceeding instituted by state writ must be punished for contempt in failing to pay them, or that the party in whose favor the costs are awarded is entitled to maintain contempt proceedings as a matter of right, but simply that the person required to pay the costs may be punished for contempt. In a statute of this kind I do not think that permissive expressions should be construed as mandatory. It seems to me that the intent of the legislature was to allow the court to enforce payment of the costs in such a case as this by means of contempt proceedings, if under all the circumstances it seemed proper to do so; as for example if it were apparent here that the relator had the means and was able to pay the costs, and nevertheless obstinately refused to pay. But I do not think the provision is designed to compel the court to imprison a poor man simply because he has been and is unable to pay the costs against him in the particular forms of litigation which must be instituted by state writs. In my opinion the section confers upon the court a discretionary power which the successful party in such a litigation may properly invoke, but which the court is at liberty to exercise or not according to the facts of the case, and |