THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. HERRICK, J.: A motion is made for a reargument in this case upon the ground that the court, in commenting upon the case of The People v. Brooklyn, F. & C. I. R. Co. (89 N. Y. 75), and showing the distinction between the facts in that case and the one at bar, overlooked the fact that one of the companies here succeeded to the rights of a company that was organized prior to the adoption of that section of the Constitution, which prohibits the extending or operating of surface railroads through the streets of cities without obtaining the consent of the municipal authorities. That fact appears in one of the exhibits in the case, and was overlooked by the justice writing the prevailing opinion, and the attention of the court was not called to it either in the briefs or by the arguments of counsel. I fail to see, however, that such fact makes any difference in the conclusion heretofore arrived at. In the case of The People v. Brooklyn, F. & C. I. R. Co. the defendant had by contract been authorized to operate its trains over the road of another company which had acquired the rights of a railroad company organized prior to the adoption of the section of the Constitution under consideration, and which had the right to lease its road or tracks to other railroad companies. The plaintiff in this case occupies no such position as the defendant did in that case. The defendant in this case, not the plaintiff, has succeeded to the rights and franchises of a railroad corporation organized prior to the adoption of said section of the Constitution. The plaintiff was organized in 1896, and succeeded to the rights of a company organized in 1893, and is, therefore, subject to the restrictions of the Constitution and Railroad Law as they existed in 1893, and by such Constitution and law it was prohibited from extending or operating its road without the consent of the local authorities, and whatever right the defendant may possess to lease the use of its tracks to other railroad companies, cannot be asserted for it and in its behalf by another corporation; neither can such right be asserted in antagonism to it. The only authority for the plaintiff's proceeding is the Railroad Law, so called, passed in 1890, known as "chapter 39 of the general laws," and its amendments, and that law provides simply for the condemnation of the right to use the tracks, not to condemn App. Div.] THIRD DEPARTMENT, MARCH TERM, 1897. the franchises or any other rights of the defendant, nor to coerce it into exercising its right to lease its tracks to any other railroad company, and any rights to be obtained by the plaintiff in these proceedings will be obtained under and by force of such law, and not under or by force of the laws under which the defendant or its predecessor was organized, or by force of anything which the defendant has voluntarily a right under its charter to do. What the plaintiff can obtain is not a "coerced lease," so to call it, under which it can exercise all the rights and privileges that it is assumed the defendant possesses and has the right to grant by lease or contract, because it obtained them prior to 1874, but simply those rights which the Railroad Law in force in 1893, and as since amended, can under the Constitution confer, and under the Constitution the very first step is to obtain the consent of the local authorities; the statute can confer no right until that consent is obtained. Counsel having upon the motion for a reargument fully presented their views, there is no occasion for a further hearing, and seeing no sufficient reason to alter the decision heretofore made, the motion should be denied. All concurred, except LANDON, J., dissenting. Motion for reargument denied. FRANK W. DISHAW, Respondent, v. L. Ogden WADLEIGH, Appellant. An action for abuse of legal process · a subpœna issued to coerce payment the proceeding complained of need not have been terminated — oral proof of the contents of a letter. If legal process is willfully made use of for a purpose not justified by law, this is an abuse for which an action will lie; in such an action it is not necessary that the plaintiff should allege or prove that the proceeding complained of has been terminated. In an action of this character it appeared that the defendant, who was an attor ney at law at Potsdam, entered into an agreement with Charles M. Woodward, who resided at Gouverneur, distant about thirty miles from Potsdam, under which the defendant was to procure accounts against divers persons to be assigned to Woodward, who was to commence suits, in his own name as plaintiff, in the Justice's Court at Gouverneur, and, at the time of having the sum THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. mons issued in these actions, was also to take out subpoenas and have them served upon the various defendants. For his co-operation in this undertaking Woodward received from the attorney, the present defendant, a small payment. One Dishaw, the plaintiff in the present action, who resided in the town of Brasher, about twenty-four miles from Potsdam and nearly sixty miles from Gouverneur, was indebted to a resident of Potsdam in the sum of about twenty dollars. The claim was assigned to Woodward, who began an action in the Justice's Court at Gouverneur, and had a summons and subpœna issued against and served upon Dishaw. As the latter failed to appear upon the return day of the summons, the attorney, the present defendant, made an affidavit that the testimony of Dishaw was material to Woodward, the plaintiff in the action in the Justice's Court, and upon proof that Dishaw had not obeyed the subpœna, an attachment was issued against him; he was brought before the justice upon the adjourned day, was fined for his disobedience and was also charged with the expenses of the attachment. At the same time Woodward, as assignee, recovered judgment against Dishaw, who, although he was present, was not called as a witness. While an execution against his person was still in the hands of a constable unserved, Dishaw brought the present action. Held, that the action could be maintained as one for an abuse of legal process; That from the evidence the jury might have found that the present defendant caused the subpoena and the subsequent attachment to be issued, not for the purpose of procuring the attendance of the present plaintiff as a witness in the case, but under the idea that, as the claim was small, he would pay it rather than submit to the discomfort and expense of attending court at so great a distance from his residence; That such a use of a subpœna was a perversion and abuse of the process of the court, and was calculated to bring the administration of justice into reproach and contempt. Proof cannot be made orally of the contents of a letter, unless it is first shown that an effort has been made to have the letter produced or that it cannot be found. APPEAL by the defendant, L. Ogden Wadleigh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 8th day of May, 1896, upon the verdict of a jury for $500, and also from an order entered in said clerk's office on the 26th day of May, 1896, denying the defendant's motion for a new trial made upon the minutes. The defendant is an attorney at law, residing and practicing his profession at Potsdam, St. Lawrence county. Sometime in the year 1895 he entered into an arrangement with one Charles M. Woodward, who resided at Gouverneur, St. Lawrence county, about thirty miles distant from Potsdam, by which the defendant was to procure App. Div.] THIRD DEPARTMENT, MARCH TERM, 1897. accounts to be assigned to the said Woodward, and then Woodward was to commence suits thereon in his own name as plaintiff in the Justice's Court at Gouverneur, and, at the time of having the summons issued in such actions, he was also to take out and have served subpoenas upon the defendants therein. In return for such services Woodward received five dollars from the defendant, who also rendered some services for Woodward in looking after his personal affairs. Woodward paid nothing for the claims assigned to him, and upon the trial testified that the reason given to him by the defendant for such procedure was, "that a large number of those men, if they were sued there in the town, they would confess judgment, and that the judgment was not collectible; men that were able to pay and would not pay, and by confessing judgment confessed they owed their account, and that by bringing them to Gouverneur they would, as a rule, pay their accounts." Q. (By the Court): "That is, they rather pay than come over to Gouverneur and be subpoenaed to come there?" A. "That, as I understand, is the gist of it." Under this arrangement a number of actions were commenced in the Justice's Court, at Gouverneur, by Woodward, and subpoenas for each of the defendants in such actions were taken out. Among the parties so sued was the plaintiff. He was indebted to a man named Tucker, who appears to have resided at Potsdam, in the sum of about twenty dollars; this account was assigned to Woodward. The plaintiff resides in the town of Brasher, about twenty-four miles from Potsdam and nearly sixty miles from Gouverneur, several towns intervening between plaintiff's residence and Gouverneur, the usual route from plaintiff's residence to Gouverneur being through the village of Potsdam. A summons and subpoena were served upon the plaintiff; both were issued at the same time at the request of the defendant, returnable September 28, 1895, at ten o'clock, a. M.; to reach Gouverneur at that time the plaintiff would have been obliged to start the day before. Upon the return day the plaintiff did not appear. The defendant thereupon made an affidavit, in which he swore that the testimony of the plaintiff was material to the plaintiff in that action, THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. and upon such affidavit an attachment was issued against the plaintiff and the suit in the Justice's Court adjourned to a future day. A constable arrested the plaintiff upon such attachment and brought him before the justice upon the adjourned day, when he was fined one dollar for his disobedience to the command of the subpœna, and fifteen dollars and twenty cents, the expenses of the attachment, amounting in all to the sum of sixteen dollars and twenty cents, and an execution against his person was issued to collect such fine and costs. At the same time judgment was taken against him upon the claim sued for, the plaintiff in that action and his assignor, Mr. Tucker, being sworn as witnesses, and the plaintiff in this action, although present under the attachment, was not sworn as a witness. While the execution against his person was still in the hands of the constable unserved the plaintiff brought this action against the defendant, which resulted in the judgment appealed from. L. Ogden Wadleigh and William P. Goodelle, for the appellant. John A. Smith, for the respondent. HERRICK, J.: This case is somewhat novel in its character; and, owing to its peculiar features, my associates have thought that while this appeal might perhaps be determined upon some of the rulings made upon the trial, yet it would be well to express our opinion upon the question as to whether such an action is maintainable, and also give expression to our views upon the practice indulged in which led to this litigation, and by such expression perhaps relieve the court from resorting to harsher measures to cause a cessation of such practice in this department. The appellant, as one of the reasons for asking for a reversal of the judgment against him, contends that the facts proved are insufficient to constitute a cause of action. He asserts that every step taken by him was authorized in law. It is true that Tucker had a legal right to assign his account to Woodward; that Woodward had a legal right to bring an action thereon in his own name in the town where he lived. It is true that a party plaintiff has a right to subpœna the defendant as a witness. It is true also that where a wit |
