First Department, November, 1909. [Vol. 134. alleged election of the directors, she had notice of the meeting or participated therein; or whether if she was not the owner, her assignor, if the stock she now holds was then outstanding, had notice and participated in the meeting or whether the then holder of the stock which she now owns voted on this stock for the directors whose election it is sought to set aside. She does show that certain persons held a pretended meeting at the time for the election of directors and that perhaps other persons, unknown to her, participated therein; but she does not show but that she derived her stock from one or more of them. It is manifest that the statute was not intended to authorize a stockholder to institute a proceeding of this nature if he was not a stockholder at the time of the alleged election of directors. It is not necessary to decide whether it might be instituted on showing that the person from whom he received his stock could have instituted it, for that is not shown. The provisions of the statute were only intended for the benefit of a person aggrieved by or complaining of an election or of a proceeding, act or matter relating to the same. A stockholder cannot be aggrieved by an election in which neither he nor his assignor had a right to participate. (Matter of Syracuse, Chenango & New York R. R. Co., 91 N. Y. 1.) It must be shown that he or his assignor was either deprived of that right or opposed the action taken or refrained from exercising the right on the assumption that the proceedings would be conducted legally, and instead of being so conducted, they were taken illegally. We are of opinion, therefore, that the petitioner fails to show either that she was aggrieved by the action taken or that she had a right to complain thereof. It follows that the order should be reversed, with ten dollars costs and disbursements, and application denied, with ten dollars costs. INGRAHAM, CLARKE, HOUGHTON and Scorr, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. App. Div.] First Department, November, 1909. JOHN B. SMITH, Appellant, v. EDWARD F. HUTTON and Others, as Copartners, Doing Business under the Firm Name of E. F. HUTTON & COMPANY, Respondents. First Department, November 12, 1909. Witness - mileage — place of residence. A witness having no temporary residence at his place of business is entitled to mileage from his place of actual residence. But if he have a temporary residence at his place of business from which he may be subpoenaed, and to which he must return, that is his residence for the purpose of figuring mileage. APPEAL by the plaintiff, John B. Smith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of June, 1909, denying the plaintiff's motion for retaxation of costs. L. B. Garretson [Albert Stickney with him on the brief], for the appellant. William F. S. Hart, for the respondents. LAUGHLIN, J.: The appeal involves the construction of section 3318 of the Code of Civil Procedure with respect to the mileage to be allowed a witness. The witness resided at Bay Shore, Long Island, but his office was at No. 33 New street, borough of Manhattan, New York, where he daily transacted business. The subpoena was served at his office and by it he was required in each instance to attend court on a subsequent day. The question is whether his place of business was his residence within the legislative intent manifested by the section in question. There is no evidence that he slept at his office or had a house or an apartment or stopped at a hotel temporarily or or otherwise within the borough of Manhattan. The learned justice at Special Term was of opinion (63 Misc. Rep. 530) that the place of business of the witness should be regarded as his residence for the purpose of computing the mileage which the plaintiff is entitled to tax on account of his attendance upon the trial. The cases upon which the court relied in making this ruling are distinguishable. In First Department, November, 1909. [Vol. 134. Clarks v. Staring (4 Iow. Pr. 243) the permanent residence of the witness was in Oneida county, where he was subpoenaed to attend court, but he was at the time engaged in business for some months in the city of New York, which necessitated a temporary residence there, as he could not go back and forth mornings and evenings. The witness was attending his business in the city of New York when the subpoena was served, and he was obliged to return there as soon as he could be excused from attending court. The construction given to the statute in that case was that ordinarily a witness is only entitled to mileage from his permanent residence, but that on the facts there presented he was entitled to mileage from his temporary residence. The case of Mitchell v. Westervelt (6 How. Pr. 265) is distinguishable upon the same ground. No case is cited, and we have found none, holding that a man's place of business may be deemed his residence under this statutory provision, where the witness did not have a temporary residence at the same place. In the case at bar the witness had no residence in the borough of Manhattan. The mileage must be figured from the residence of the witness, and the residence must be either his permanent or his temporary place of abode. If the witness have a temporary residence where his business is located, from which he is subpoenaed and to which he must return, then that is his residence for the purpose of ascertaining the mileage to which he is entitled. Here the witness went back and forth daily from his residence to his place of business, and we are of opinion that he was clearly entitled to mileage from his residence, as distinguished from his place of business, where he had no residence. The case of Pike v. Nash (16 How. Pr. 53) supports this construction. The point there presented for decision was whether a witness was entitled to mileage from the place where he was served with the subpoena or from his place of residence, and it was held that no matter where service was made the mileage was to be computed from his residence. Moreover, section 3267 of the Code of Civil Procedure precludes the taxation for mileage paid to a witness unless an affidavit is filed stating the distance for which mileage has been allowed in the bill of costs proposed for taxation or retaxation, and the practice requires that the affidavit shall also state the distance from the place of residence of each witness to the court house by the route usually traveled. (Taaks v. Schmidt, 25 How. Pr. App. Div.] First Department, November, 1909. 340.) It is manifest that such an affidavit cannot be made unless the place from which mileage is figured is a residence of the witness, either permanent or temporary. It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. INGRAHAM, CLARKE, HOUGHTON and SCOTT, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and' motion granted, with ten dollars costs. ELIZABETH C. PRALL, as Executrix, etc., of WILLIAM E. PRALL, JR., Deceased, Respondent, v. JOSEPH H. HOADLEY, Appellant. First Department, November 12, 1909. Judgment - amendment of interlocutory judgment taken by default estoppel. Where an interlocutory judgment has been entered by default the prayer of the complaint limits the relief to which the plaintiff is entitled. Hence, where an interlocutory judgment by default was taken under a complaint by an executrix which demands only the reassignment of letters-patent held under an option and an accounting, with other and further relief, it cannot be so amended as to enable the plaintiff to recover individually or as executrix as the evidence may warrant. Nor is an amendment justified which enables the plaintiff to recover damages for a breach of the option contract by reason of the fact that the defendant had assigned certain of the property contrary to a trust thereby created Such amendment of the interlocutory judgment should also be denied on the ground that the plaintiff successfully opposed defendant's motion to open his default. APPEAL by the defendant, Joseph H. Hoadley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on 7th day of June, 1909, amending an interlocutory judgment theretofore entered herein. Ralph Polk Buell [George S. Graham with him on the brief], for the appellant. Henry W. Jessup, for the respondent. First Department, November, 1909. [Vol. 134. LAUGHLIN, J.: This action is based on a contract in writing, bearing date the 21st day of February, 1899, made between the plaintiff's testator and the plaintiff individually, who was his wife, and the defendant. By virtue of the contract, certain letters patent and patent rights were assigned to the defendant in trust to hold the same for a period of at least six months, within which time the defendant was to have the right and option to decide whether or not, in his opinion, it was wise and expedient for the purpose of working the inventions covered by the patents, to organize a corporation and to issue licenses under the patents or to make assignments thereof or to develop and promote the rights and improvements covered thereby. In the event that the defendant decided to organize a corporation, the steps to be taken in that regard were outlined in the contract and the division of the capital stock was therein prescribed. It is alleged in the complaint that the corporation contemplated was never organized and that in or about the year 1901 the plaintiff individually and the decedent elected to terminate the contract and notified the defendant of their election in that regard, and requested him to reassign the letters patent and to return and redeliver all papers, working models, drawings and patterns received by him from plaintiff's testator, pursuant to the provisions of the contract, and to retransfer and deliver to plaintiff's testator certain shares of the capital stock of the Prall Engine and Power Company, which the defendant had received by virtue of the provisions of said contract, and to account for all moneys and profits received by him under the contract, all of which he has refused and neglected to do. The only prayer for relief in the complaint is for an accounting and that the defendant be compelled to transfer and deliver to the plaintiff said stock and the working models, drawings, patterns and other papers connected with the Prall rotary engine, referred to in the contract, and to assign or reassign to her as executrix the letters patent and to account to her as executrix for all moneys or profits received by him under the contract, with the usual prayer for other and further relief. The defendant made default in pleading and an interlocutory judgment was thereafter entered on motion of the plaintiff, granting the prayer of the complaint, and adjudg ing that the defendant account before a referee designated therein |