Summary
In Kerr v. Mount (28 N.Y. 659, 664) Chief Judge DENIO said: "Moreover, where process has been set aside for irregularity, the party at whose instance it was issued, cannot justify under it, though, probably, the officer may.
Summary of this case from Siegel v. No. Blvd. 80th St. Corp.Opinion
September Term, 1863
J.E. Burrill, for the appellant.
John C. Dimmick, for the respondent.
The warrant of attachment was undoubtedly void. It could only be issued where an action was depending. The authority to grant it against a non-resident of the state is given only " in an action for the recovery of money against a defendant who is not a resident of the state." (Code, § 227.) The mere issuing of a summons is not the commencement of an action for general purposes, (§ 99.) Besides, the Superior Court had not jurisdiction of the action attempted to be commenced. In certain actions enumerated in §§ 123 and 124 of the code, that court has jurisdiction, without regard to the defendant's residence, when the cause of action shall have arisen in the city; but an action on contract, for the recovery of money, is not among those there enumerated. In all other actions where there is only a single defendant he must, to give the court jurisdiction, reside in the city or be served with the summons therein, (§ 33.) Moreover where process has been set aside for irregularity, the party at whose instance it was issued can not justify under it, though probably the officer may. ( Chapman v. Dyett, 11 Wend. 31.) The position mainly insisted on by the counsel for the defendant is, that if the seizure were considered to be illegal and an act of trespass on the part of the defendant, still the injury to the property by the negligence of the sheriff's officer was not chargeable to the defendant, but only to the sheriff. By procuring the process and placing it in the hands of the office, the defendant, it is urged, became responsible only for conduct on the part of the officer which he would have had a right to pursue if the process had been valid. He did not direct or countenance the culpable negligence and misconduct by which the property was injured, but only the seizure of it and the keeping of it securely and carefully. If he had only done this, the property would have been returned to the plaintiff in the same state it was in when seized; the damages would have been nominal. In this action it is contended no recovery except as to the missing lamp, could be had, because it is brought to recover for the injury, and not for the seizure. This argument overlooks the legal nature of the action. It was in substance an action for trespass de bonis asportatis, with an admission not usually inserted in the plaintiff's pleading in such an action, or at all necessary, that the trespasser had returned the property, and a qualification annexed to that concession, that it was returned in a damaged condition. If the same facts had appeared in evidence without having been set out in the complaint, the return would have gone in mitigation of damages, to a certain extent, but in a degree less by the amount of injury they had sustained by the sheriff's negligence. ( Vosburgh v. Welch, 11 John. 175; Hanmer v. Wilcox, 17 Wend. 91.) The circumstance that the plaintiff had unnecessarily inserted a statement of the mitigating fact in his complaint was of no legal consequence. The process being void, the party who set it in motion, and all persons aiding and assisting him, were prima facie trespassers. If, though void as respects the party, it were yet regular and apparently valid on its face, it might protect the officer against an action, on the principle of Savacool v. Boughton, (5 Wend. 170;) but this protection, being extended to the officer upon motives of policy, would not at all aid the party. Acts which the officer might justify, would be trespasses against the party. There is no principle with which I am acquainted which can shield the defendant from the damages which the plaintiff has sustained by his wrongful act in causing this property to be seized under a void warrant of attachment. Hence I am in favor of affirming the judgment appealed from.
The attachment under which the goods in question were taken and held by the sheriff, was set aside by the Superior Court of the city of New York for irregularity. I incline to the opinion that the attachment was a nullity on account of the court, out of which it was issued, having no authority to issue such a process. But I have not examined that question, because, conceding it to have been issued by proper authority in respect to jurisdiction, still it having been set aside as irregular, it afforded no justification afterwards for acts previously done under it, to the party in whose favor it was issued. If issued by competent authority, and regular upon its face, it might afford protection to the officer for his acts previously done under it, but none whatever to the party. As to him, it was then, as though no process whatever had been issued, and the goods had been taken and detained by his order without any process. ( Chapman v. Dyett, 11 Wend. 31; Smith v. Shaw, 12 John. 257; Hayden v. Shad, 11 Mass. Rep. 500; Codington v. Lloyd, 8 Adol. Ell. 449; Parsons v. Lloyd, 2 Black. 845.) The moment it was set aside, the party became a trespasser ab initio.
The return of the property in such a case only goes in mitigation of damages. It is no answer in bar of the action for the wrong. ( Hanmer v. Wilsey, 17 Wend. 91.) The officer in such a case is the agent or servant of the party in whose favor the process is issued, and the party is clearly liable for any injury to the goods caused by his negligent or careless acts while such goods are in his possession.
The judgment should therefore be affirmed.
All the Judges concurred.
Judgment affirmed.