
    Gertrude D. Hawes, Respondent, v. Eliza C. Dunlop, Appellant, Impleaded with Oliver J. Wells and Henry H. Snedeker, Defendants.
    (No. 1.)
    First Department,
    February 18, 1910.
    Tort — malicious litigation in the name of another — action under section 1900 of the Code of Civil Procedure.
    The wife of one judicially declared incompetent who was appointed committee of his person by taking an appeal in her own name from said determination after the death of the incompetent, and by subsequently appealing as his executrix, cannot be held for damages under sections 1900 and 1901 of the Code of Civil Procedure authorizing an action against those who maintain vexatious and malicious litigation in the name of another without consent. A mere mistake as to a right to appeal does not create liability under said sections.
    Appeal by the defendant, Eliza 0. Dunlop, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the complaint.
    
      Chester H. Lane, for the appellant.
    
      Gilbert Lay Hawes [Irving Goldberg with him on the brief], for the respondent.
   Clarke, J.:

Appeal by the defendant Eliza C. Dunlop from an interlocutory judgment overruling ,a demurrer interposed by her to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action.

This is an action concededly brought under sections 1900 and. 1901 of the Code of Civil Procedure for $30,000 damages. Section 1900 is as follows : “ If a person, vexatiously or maliciously, in the name of another, but without'the latter’s consent, or in the name of an unknown person, commences ..or continues, or causes to be commenced or continued, an action, or special proceeding, in a court of record or not of record, or a special proceeding before a judlge or a justice of the peace; or takes or causes to be taken, any proceeding, in the course of an action or special proceeding in such a court, or before such an officer, either before or after judgment or other final determination; an action, to recover damages therefor, may be maintained against him, by the adverse party. to the action or special proceeding, and a like action may be maintained by the person, if any, whose name was thus used. He is also guilty of .a misdemeanor, punishable by imprisonment, not exceeding six months.” Section 1901 provides for treble damages to the adverse party, or, in an action by the person whose name was used, his actual damages and $250 in addition thereto. ■

The plaintiff instituted a proceeding to have her uncle, Dr. Clark W. Dunlop, the husband of the defendant Eliza C. Dunlop, declared an incompetent. As a result of such proceedings Clark W. Dunlop Was declared to be an incompetent, Mrs. Dunlop was appointed committee, of his person and the Title Guarantee and Trust Company and Abraham Stern were appointed committee of his property and shortly thereafter the alleged incompetent died..

Subsequently, desiring to review such determination, Mrs. Dun-lop served a notice of appeal in her own name from said order to this court, and thereafter served another notice of appeal describing herself asexecutrix.named in the last will and testament of Clark W. Dunlop, deceased.”

This court dismissed her appeal, but without costs. She thereafter took an appeal to the Court of Appeals where the appeal was likewise dismissed, Without costs. (Matter of Dunlop, 126 App. Div. 914; 193 N. Y. 606.) It thus .appears that she was mistaken in her view of her right of review. But a mistake either on her part or on that of counsel who adviséd her, when the appeal Was taken in her own name, cannot, we think, render her liable to an action under the Code provisions cited. These were intended to prevent vexatious and malicious litigation in the name of another and without consent.

We are of the opinion that the complaint does not state facts sufficient to constitute a cause of action. The judgment appealed from should be reversed, with costs,-and the demurrer sustained, with costs, with leave to the plaintiff to amend on payment of costs in this court and in the court below.

Ingraham, P. J., Iaughlin, Scott and Miller, JJ., concurred.

Judgment reversed, with costs,, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  