102 N.Y.S. 45 | N.Y. App. Div. | 1907
The defendant Yielee was a justice of the peace of Mt. Hope, and his codefendant was overseer of highways in that'town. The complaint alleges that the defendants illegally, wrongfully and without jurisdiction and unlawfully did cause to be issued a legal process against the plaintiff herein, which consisted of a summons issued by Yielee in an action wherein Hawkins was plaintiff; that the summons was served and the defendants entered up judgment for the sum of five dollars fine and penalty by reason of plaintiff’s failure to pay a highway tax in the town of Mt. Hope ; that the plaintiff was arrested on a body execution, issued upon the judgment of the justice, and imprisoned thereunder, by reason of which he has suffered mental, physical and moral injury; that the .arrest and legal-
The allegation that the defendants-had no jurisdiction of the person of the plaintiff, doubtless meaning thereby that the justice had no jurisdiction, is, of course, a statement of a conclusion of law, and / no facts are alleged in the complaint which can sustain it.
The complaint is not sufficient as setting forth a cause of action for an abuse of legal process; the mere statement that the arrest and legal proceedings constituted such abuse is not enough; such an action will not lie unless there has been willful misuse of the process of the court to the injury of the plaintiff. There is no allegation in the complaint to negative the presumption that both of the defendants were proceeding honestly and in the utmost good faith as public officers to discharge their respective duties. The Justice’s Court had jurisdiction of the subject-matter, for aught that appears; MeClerg may have been served with a summons while he was within the town where the justice resided, and while the allegation appears in the complaint that he was a resident of the town of Deer Parle at one time, it does not appear that he was not a resident of said town at the time when he became liable for the payment of the road tax, which was sought to be enforced in the action before the justice. The allegations of the'complaint make it appear that the use of'the process complained of was clearly legitimate. The legal conclusions reached by the justice may or may not have been correct; such conclusions are to be reviewed in the methods prescribed by the Code and not by actions for the abuse of legal process. The complaint is even silent as to whether the judgment was ever appealed from and, if so, how the appeal resulted.
Of course the complaint cannot be sustained, as setting forth a cause of action for malicious prosecution- or false imprisonment; there are no allegations of malice, want of probable cause, termination of the action favorably to the plaintiff or the invalidity of the execution or the judgment upon which it was issued.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred. ■
Interlocutory judgment reversed, witlv-costs, and demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint upon payment of costs within twenty days.