People ex rel. Winans v. Adams

13 N.Y.S. 714, 37 N.Y. St. Rep. 603, 1891 N.Y. Misc. LEXIS 1652

Opinion

Brady, J.

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 usurped, and that each of the usurpers pay a fine of $2,000. The fine could be imposed under section 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. Pr. 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 section 3253 of the Code. If the plaintiffs did not intend to essay to recover the sum named it should not have been claimed in the complaint. It is there, however, and must bear the ordinary vicissitudes of legal proceedings. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.