SPRAGUE v. PARSONS

SPRAGUE v. PARSONS. N. Y. Common Pleas, Special Term, May, 1884. Action; for Trespass in Levying Void Attachments.—Pleading ; ALLEGATION O^.CONCLTJSION OF LAW. In the complaint in an action to recover damages for a trespass in levying void or irregular process, it is not necessary to aver malice or want of probable cause. An allegation that the attachment was illegal, unauthorized and void, is not sufficient on demurrer, for it states a conclusion of law only. An allegation that the attachment has been vacated for irregularity is sufficient to sustain the action, although the rule of damages may be different from that applicable in the case of a void attachment. Demurrer to complaint. Daniel J. Sprague sued William H. Parsons and others for damages sustained by the issuing of a void attachment and levy thereof by the sheriff, in an action in the supreme court., brought by these defendants as plaintiffs against this plaintiff and others as defendants, to charge them with liability for the debts of the McKillop & Sprague Company, of which it was claimed that such defendants were trustees. The complaint alleged the above matters, and that the attachment was vacated and set aside in said action, and alleged damages, &c. Defendants demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action. Gilbert R. Hawes, in support of the demurrer, urged that there could be no action, except for malicious prosecution, and that in the absence of malice an action could only be maintained on the undertaking given to procure the attachment. W. Z. Larned, for plaintiff, opposed. [MAJORITY — J. F. Daly, J.] J. F. Daly, J. The complaint is sufficient. There is no need to aver malice or want of probable cause in suing for damages sustained by the levying of a void or irregular attachment. A process being void, the party who sets it in motion and all who aid him are trespassers (Kerr v. Mount, 28 N. Y. 659 ; Whele v. Butler, 61 Id. 245; Day v. Bach, 87 Id. 56; see also in this court, Wehler v. Haviland, 42 How. Pr. 399 ; 4 Daly, 550). The action may be maintained if the process be irregular only, on proof that it has been set aside. The complaint avers that fact, and is sufficient in such an action. But the rule of damages may be different in such a case from the rule in case of an absolutely void attachment (Day v. Bach, above). The complaint here is not good as a pleading in an action of the latter class. The allegation that the attachment was “ illegal, unauthorized and void,” is a statement not of fact, but of a conclusion of law (Hammond v. Earle, 58 How. Pr. 426, 437-8). The plaintiff will have to amend if he desires to prove on the trial that the attachment was void. But as a complaint in an action upon an attachment voidable for irregularity, the complaint is good because it avers that the attachment has been vacated. The demurrer is therefore overruled with costs. Leave to defendant to answer on payment of costs.