This is an action against an attorney. The complaint alleges damages by reason of the attorney’s perjured testimony before an Official Referee and asks for treble damages under section 273 of the Penal Law. An attorney, who with intention to deceive the court, testifies falsely to a material fact or issue in a judicial proceeding is guilty of deceit under section 273 of the Penal Law. The civil remedy there provided may be invoked if there is damage. One other than an attorney may not be held in an action for deceit on account of perjured testimony given (Young v. Leach, 27 App. Div. 293; Anchor Wire Corp. v. Borst, 277 App. Div. 728; Burbrooke Mfg. Co. v. St. George Textile Corp., 283 App. Div. 640).
However, the statute puts a special civil remedy in the hands of one wronged by an attorney. Damages are alleged. But it is asserted they may not be susceptible of proof. With that the court cannot be concerned on a motion under rule 106 of the Rules of Civil Practice. Motion denied.
Submit order.