People ex rel. Winans v. Ambrose — 37 N.Y. St. Rep. 603

Majority

p. 603

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

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

Costs—Extra allowance—Usurpation op office.

Where the complaint in an action to oust defendants as usurpers in office demands that each shall pay the fine provided for by § 1956 of the Code, the aggregate amount of such fines furnishes a basis for an extra allowance.

Appeal from order made at circuit, granting defendants an extra allowance of $350.

The action was brought to set aside an election of the Church of the Holy Nativity, held in April, 1890, at which election these plaintiffs claimed to have been duly elected wardens and vestrymen of said church.

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

The following is the opinion at special term:

The complaint, additional to other relief, demands a judgment that each of the defendants pay to the People of the State of New York a fine of $2,000. This is an “ amount claimed ” aggregating $20,000, and may be made the basis for an additional allowance under § 3253, Code of Civ. Pro. An allowance of $350 is granted.

This is an action against the defendants as usurpers and its object is to oust them. The relief demanded is not only this but that others named be declared entitled to the offices they usurp, and that each of the usurpers pay a fine of $2,000. The fine could be imposed under § 1956 of the Code and the defendants having this additional claim made against them, were justified in making any and all preparation to resist it. The proof required to warrant such a fine, it has been said, must be of some criminal or grossly improper act in taking or holding the office, People v. Nolan, 65 How., 468 , and hence the claim was not only grave in aspect but to an amount aggregating $20,000, as said by the learned justice in the court below, and the basis therefore for an additional allowance under § 3253 of the Code. If the plaintiff did not intend to essay to recover the sum named it should not have been claimed in the complaint It is there, howevér, and must bear the ordinary vicissitudes of legal proceedings.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.