Sprague v. Parsons — 1 N.Y. St. Rep. 607

Majority

p. 607

Daniel J. Sprague, appellant, v. William H. Parsons and George H. Hicks, respondent.

(New York Common Pleas,

General Term,

Filed June 6, 1886.)

Headnote

Attachment—Damages fob—Necessaby allegations in complaint.

In an action for damages from the levy of an attachment, the complaint should contain allegations of fact showing that the attachment was unauthorized or irregular.

Appeal by the plaintiff from a judgment in favor of defendant, entered upon dismissal of the complaint at trial term. The complaint was dismissed upon the ground that it did not state facts sufficient to constitute a cause of action. The action was to recover damages sustained by the levy of an attachment in an action brought by defendants against the plaintiff and others in the supreme court, which attachment had been vacated. The" defendants asked for a dismissal of the complaint, for the reason that the allegations of fact in the complaint did not state that the attachment was unauthorized or was irregular.

W. Z. Lamed, for plaintiff, appellant: Ira D. Warren. of counsel.

Gilbert R. Hawes, for defendants, respondents.

The allegation of the complaint that the attachment was wholly illegal and -unauthorized by law, and the

p. 608

court had no jurisdiction to issue the same, and the same was null and void, is a statement of a conclusion of law and sets forth no facts whatever. Hammond v. Earle, 58 How. Pr. R., 426.

The allegation that the action in which the attachment was issued was an action against this plaintiff and others to charge them with liability for the debt of the McKillop & Sprague Company, of which corporation it was claimed that the defendants in that suit were trustees, does not show that the action was one in which an attachment was unauthorized. It does not state that the defendants therein were sought to be charged with liability as trustees. The liability with which they were sought to be charged might have been that of surety, and yet the allegation would have been true, the claim that they were trustees not being averred as the ground of action. As, therefore, that action may have been an action for a money demand on contract, for aught that appears in the complaint in this action, it is not shown that the attachment was unauthorized in the action.

Hothing is left, therefore, but the allegation that the attachment was vacated on motion. But it is not alleged that it was vacated for irregularity, nor as being unauthorized. It might have been vacated for error upon a question of fact upon opposing affidavits. Unless unauthorized or irregular, an action of damages (not brought upon the undertaking) could not be maintained. Day v. Bach, 87 N. Y., 56 .)

It appears, therefore, that no facts were stated in the complaint constituting a cause of action, and the complaint, was properly dismissed.

On the argument of a demurrer to the original complaint in this action (it has since been amended), I held that the complaint might be sustained as upon an attachment set aside for irregularity; but that point was evidently not discussed by counsel.

Judgment should be affirmed, with costs.

Bookstaver, J., concurred.