
    The People, ex relatione Hendricks, vs. The Superior Court of the City of New York.
    ALBANY,
    Feb. 1838.
    Where the proceeding on the part of a plaintiff in the prosecution of a suit is grossly vexatious and oppressive, and costs to a heavy amount are incurred, in consequence of the defendant having been purposely misled by the plaintiff, the suit will be ordered to be discontinued without costs, on the sum in demand being paid into court.
    Motion for mandamus. A suit was commenced by the relator against the North River Bank, in the city of New-York, during the general suspension of specie payments by the banks of this state ; and on the application of the defendants, the superior court of the city of New-York, in which the suit was prosecuted, made an order that the defendants have leave to pay into court the debt demanded, for the benefit of the plaintiff, and that the suit be discontinued without costs. The relator applied for a mandamus to vacate this order. It appeared, in opposition to the motion, that on the thirteenth day of December last, a demand of payment in specie was made at the counter of the North River Bank of a bundle of bank bills, amounting together to the sum of $435. Within an hour after the demand, the cashier of the bank called on the plaintiff, informed him of the demand, and told him he had come to pay the amount of the bills, in specie. The plaintiff denied having sued the bank, and told the cashier that it was all a mistake, and that he would have the matter stopped. Receiving this answer, the cashier left the plaintiff without making a formal tender. The next day a summons, containing sixteen hundred folios, was served upon the corporation, and the cashier again called upon the plaintiff, who said that he had not intended to sue the bank, and that he did not want the specie, but requested that the costs might be paid, though they should amount to $200. Instead of doing so, the defendants applied to the superior court.
   By the Court,

Bronson, J.

This was a vexatious and oppressive proceeding to make costs, and not a fair and hona fide attempt to enforce a legal right. The defendants also, when prepared and ready to pay the specie, were purposely misled. None of the facts are denied by the relator. The superior court, therefore, were well warranted in the order made, and are fully supported by the case of Johnson v. Houlditch, 1 Burr. 578, where the plaintiff having kept out of the way to avoid a tender, the court turned the plaintiff out .of court without costs.

Motion for mandamus denied, with costs.  