Stewart v. Schultz

3 Abb. Pr. 383, 50 Barb. 192, 34 How. Pr. 31

Opinion

By the Court.

*—J. C. Smith, J.

I think this case is not within the statute giving double costs, or taxed costs and one-half thereof in addition. (2 Rev. Stat., 617, § 24, subd. 1.)

1. The only actions against public officers to which the statute applies are those brought for some act done by such officer by virtue of his office, or for the omission by him to do some act which it was his duty to perform.

The only purpose-of the present action was to restrain the defendants from doing a threatened or anticipated act alleged to be injurious to the plaintiff.

The plaintiff did not claim to recover damages, nor ask for relief, either by reason of acts done or omitted; he sought to prevent certain official actions contemplated by the defendants. Such a case is not within the statute.

This was the ground on which Justice Ingraham disposed of the question at the special term, and I fully concur in it.

2. I think the statute, when adopted, applied exclusively to actions and proceedings in courts of law, and not to suits in chancery, and consequently it is not now applicable to actions of purely equitable cognizance.

I am in favor of affirming the order.

Leonard, P. J., concurred.

Order affirmed.

Present —Leonard, P.J., Fullerton and J. C. Smith, JJ.