Sprague v. Parsons
New York Court of Common Pleas
Trial upon demurrer to complaint. The action was b.rought to recover damages alleged to have been sustained by the issuing of a void attachment and levy thereunder by the sheriff, in an action in the Supreme Court by the defendants in this action as plaintiffs against the plaintiff in this action and others as defendants, to charge them withliabilityfor the debt of the McKillop & Sprague Company, of which it was claimed that such defendants were trustees.
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Trial upon demurrer to complaint. The action was b.rought to recover damages alleged to have been sustained by the issuing of a void attachment and levy thereunder by the sheriff, in an action in the Supreme Court by the defendants in this action as plaintiffs against the plaintiff in this action and others as defendants, to charge them withliabilityfor the debt 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.…
1Opinion of the CourtJ. 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; Wehle v. Butler, 61 N. Y. 245; Day v. Bach, 87 N. Y. 56; see also in this court, Wehle 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…
2Cases cited5 opinions
- Day v. . BachNew York Court of Appeals · 1881
- Kerr v. . MountNew York Court of Appeals · 1863
- Wehle v. . ButlerNew York Court of Appeals · 1874
- Wehle v. HavilandNew York Court of Common Pleas · 1872
- Wehle v. HavilandNew York Court of Common Pleas · 1872
3Cited by3 opinions
- Sprague v. ParsonsNew York Court of Common Pleas · 1886
- Hoffman v. TaylorAppellate Terms of the Supreme Court of New York · 1910
- Town of Ontario v. First National BankNew York Supreme Court · 1891