Opinion
May 26, 1941.
Appeal by plaintiff in an action to recover damages for false arrest and imprisonment (a) from an order granting defendants' motion for judgment on the pleadings, and (b) from a judgment entered thereon dismissing the complaint. Order and judgment reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. In an action for the dissolution of a partnership and an accounting, the present defendants, respectively, the plaintiff in that action and plaintiff's attorney therein, procured the issuance and service of an execution against the person of the plaintiff herein and caused the latter's incarceration thereunder. The execution was based on the provisions of the judgment which declared the partnership dissolved and terminated, directed the defendant therein (here plaintiff) to account for his acts and conduct in connection with the property and assets of the partnership and all moneys and assets and other property received by him at any time or belonging to that partnership, and adjudged that the plaintiff therein (here a defendant) recover of the defendant therein (here plaintiff) the sum of $2,708.38 damages, besides certain interest and costs. No power was resident in the court to issue the execution. The papers upon which it was issued were legally insufficient to give the court jurisdiction. The execution was, therefore, void and afforded the defendants no protection against the cause of action herein alleged. ( Vittorio v. St. Regis Paper Co., 239 N.Y. 148, 152; Sweeney v. O'Dwyer, 197 id. 499, 503; Swart v. Rickard, 148 id. 264, 267, 268; Fischer v. Langbein, 103 id. 84, 89, 90; Marks v. Townsend, 97 id. 590, 597.) Lazansky, P.J., Carswell, Johnston, Taylor and Close, JJ., concur.