Daley v. Hellman

(dissenting.) This action is brought under sections 1900 and 1901 of the Code of Civil Procedure. By these sections it is provided that, if a person vexatiousy or maliciously, in the name of another, commences or continues an action or special proceeding in any court, the adverse party shall have an action on his part to recover damages, and treble damages are given. By section 983 of the Code, actions for penalties must be tried in the counties where the offense arose. The offense in this case was committed in the city of Hew York. The case of Veeder v. Baker, 83 N. Y. 156, holds that the action is one for a penalty, and that the defendants had an absolute right to have a motion granted for a change of the place of trial. The order should be reversed, with costs and disbursements, and the motion granted, with $10 costs to abide event.

There is no reason for a reargument of the appeal from the order in this action. All the questions involved were examined, and nothing was misunderstood or overlooked. The motion should be denied, with $10 costs and disbursements.

Pratt, J., concurs.