
    The People of the State of New York ex rel. Lavinia Lally and Others, Respondents, Appellants, v. The New York Central and Hudson River Railroad Company, Appellant, Respondent.
    Second Department,
    January 25, 1907.
    Mandamus — damages for false return — counsel fees not recoverable.
    Damages for a false return to a writ of mandamus should not include the relator’s counsel fees nor other disbursements of the trial.
    Although the common-law action for damages for a false return no longer lies and the issue is tried in the proceeding itself, the damages recoverable for the false return are the same as those formerly recoverable in the action.
    Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th. day of March, 1906, directing the issuance of a peremptory writ of mandamus requiring said defendant to construct and maintain a bridge across its tracks from the property of the relators on one side thereof to their property on the other side, and awarding damages to the relators. -
    Also, an appeal by the relators, Lavinia Lally and others, from so much of said order as assesses the relators’ damages.
    The appeal is only from so much of the said order as assesses the damages of the relators for a false return to the alternative Writ.
    The trial judge found the damages to be $1, and to that added the expense of tlm relators for counsel, $1,750, and for surveyors, engi-' neers and real estate experts, ,$502.50, on the- trial of .the issues raised by the return in the proceeding as damages, making the total .damages $2,253.50. ' '
    
      Robert A. Kutschbock [Ira A. Place with him on the brief], for the defendant.
    
      Lavinia Lally, for the relators.
   Gaynor, J.:

The damages recoverable by the relator in a mandamus proceeding caused by a false return to an alternative' writ do not. include counsel fees therein. Formerly damages for a false, return could only be recovered in an action for damages for the false return. If such an action were brought, and the plaintiff prevailed, he in that way falsified the return and thereby established his right to the pei'emptory writ and also got judgment for his damages at the same time. • There was no other way to falsify the return, and it remained conclusive until falsified in that way.

But a statute was passed for the trial in. the proceeding itself of • the issues of fact raised by the return tó the alternative writ, and also for. the recovery therein of, the1 relator’s damages-caused by the false return (Code Civ. Pro. sec. 2088; People ex rel. Goring v. President, etc., 13 Misc. Rep. 732; People ex rel. Aspinwall v. Supervisors of Richmond, 28 N. Y. 112)

’ The only damages that the relator may recover in the proceeding, however, are the same that he could recover in the action for a false return, for so says the statute expressly (People ex rel. Aspinwall v. Supervisors of Richmond, 28 N. Y. 112).

And it is plain that in such an action, which is for tort — the tort of the false return — the fees paid to counsel therein could not be. made part of the damages to be recovered. There is no tort action in which tliat can be done. In actions. for damages for malicious prosecution, or false imprisonment, it is'not the counsel fees incurred therein that are allowed, but those incurred by the plaintiff in defending himself in the criminal court. '

In' the Goring Case (supra) the sum of $1,000 was afterwards allowed as damages, including counsel fees or anything else that could be included, but only because the trial judge did not know what else to do. The Court of Appeals had sent the case back to have the damages assessed without giving any enlightenment or hint as to what damages could be recovered for a false return when there was no return at all (151 N. Y. 386), and the trial judge was at a loss what to do (20 Misc. Rep. 28). His action is not to be taken as a precedent; nor can the decision of the Court of Appeals be taken as holding that counsel fees can be allowed as part of such damages. There is nothing of the sort there. The case is a singular one.

The foregoing applies to the other expenses of the trial. They are to be included in the bill of costs and disbursemeiits, so far as they can be.

The final order should be reversed in so far as it allows counsel fees and other .disbursements as part of the damages, and a new hearing ordered before the trial judge on the question of damages, unless the relators stipulate to amend the said order by reducing the damages to $1.

Hirschberg, P. J., Jenks, Hooker and Miller, JJ., concurred.

Final order reversed,, without costs, anda new hearing, ordered before the trial judge on the question of damages, unless the relators stipulate to amend the order by reducing the damages to one dollar, in which event the final order is affirmed, without costs.  