Defendant was convicted by the Court of Special Sessions of the City of New York of the crime of common barratry and this court has reversed the conviction and dismissed the information holding “ The evidence was insufficient to establish the crime charged and the guilt of defendant was not proven beyond a reasonable doubt.” It is my view that the evidence establishes the crime charged. If the evidence be sufficient, then the information may not be dismissed, although in the exercise of discretion a new trial may be directed. (People v. Lee, 308 N. Y. 302; People v. Scheinmcm, 295 N. Y. 142; People v. Bellows, 281 N. Y. 67; Cohen and Karger, Powers of the New York Court of Appeals [1952 ed.], p. 758.)
In 1957 the painting industry established by collective agreement a welfare fund for the benefit of its members. Into this fund employers paid 12% of gross payroll before the deduction of Federal withholding tax, 2% of which was allocated to vacation benefits. In 1957 defendant, a member of the union, earned a gross of $2,229.99, 2% of which or $44.60 was paid by his various employers into the vacation fund. Under the Internal Revenue Act these vacation benefits constituted a part of wages and the fund withheld $8.91 for Federal withholding tax, leaving a net vacation benefit of $35.68.
Similarly, in 1958, the welfare fund received a percentage of defendant’s gross earnings for that year; 2% of that amount was $39.19 as the gross receipts in the vacation fund; $7.84 was the amount withheld for income tax; and the net result was $31.35 owing to defendant for vacation benefits for the year 1958.
Checks were sent to defendant by the welfare fund covering the amounts owing for the years 1957, 1958 and 1959. The check sent to cover benefits for 1957 was returned after defendant refused acceptance.
In 1958 the defendant at bar sued one Martin Rarback, as treasurer of the union, for $44.60. The sole issue involved in said suit was the propriety of the deduction of the Federal withholding tax. The issue was resolved in favor of the union and judgment was awarded on October 29, 1958 in favor of the plaintiff, the defendant at bar, for $35.68, the amount conceded by the union, plus costs in the sum of $3.13, making a total of $38.81. The sum of $35.68 is the sum demanded less the amount of the Federal withholding tax. Defendant refused the amount of the judgment tendered by the union. Thereafter the defend*258ant herein instituted the following described 14 separate actions against the union:
In each of the 14 actions the union affirmatively alleged the defenses of res judicata and payment, and, except in one action, a counterclaim for abuse of process. None of the 14 cases was brought to trial. The evidence in my judgment supports the finding that the issue decided by the prior judgment was the only disputed issue in the said 14 actions and that the subject matter was identical with the issue litigated in the first action. Defendant’s testimony to the effect that his sole motive was to recover what was lawfully due him is not conclusive.
Section 320 of the Penal Law defines barratry as follows: “ Common barratry is the practice of exciting groundless judicial proceedings.” Section 322 of the Penal Law requires proof to convict of this misdemeanor as follows: “ No person can be convicted of common barratry, except upon proof that he has excited actions or legal proceedings, in at least three instances, and with a corrupt or malicious intent to vex and *259annoy.” Section 323 of the Penal Law provides: “Upon a prosecution for common barratry, the fact that the defendant was himself a party in interest or upon the record to any action or legal proceeding complained of, is not a defense.”
The record amply supports the finding implicit in the judgment of conviction that the 14 actions were groundless and instituted “in at least three instances, and with a corrupt or malicious intent to vex and annoy.” (Penal Law, § 322.)
The judgment of conviction should be affirmed.
B otein, P. J., Breitel and Eager, JJ., concur with Bastow, J.; McNally, J., dissents in opinion.
Judgment of conviction reversed, on the law and on the facts, and the information dismissed.