The opinion of the court was delivered by
Reavis, J.
Plaintiffs commenced an action against defendants upon an injunction bond executed by defendant Nichols as principal and Phipps and Parker as sureties in the sum of $200. The bond was executed in consideration of the issuance of a temporary injunction in a suit then instituted by Nichols against the plaintiff George J. Willey. Afterwards the injunction was dissolved because wrongfully issued and plaintiffs in this action allege that they were damaged in the sum of $1,500 by reason of the issuance of the writ of injunction. They further allege that the defendant Nichols, who as plaintiff procured the writ, “wilfully and maliciously and with intent to harass and injure plaintiffs and each of them, instituted the action and sued out the injunction.” Plaintiffs in this action seek to recover the sum of $1,550 against Nichols for his wilful and malicious prosecution of his action and issuance of the injunction therein, and also seek to recover the $200 penalty of the bond against all the defendants. Defendants demurred to the complaint upon two grounds; first, that two causes of action are improperly united, one upon a bond and the other on a bond and for damagés, and second, that the complaint does not state facts sufficient to constitute a cause of action. The superior court sustained the demurrer upon the first ground, the improper union of two causes of action. The cause of action against Nichols may be viewed as essentally one for malicious prosecution, i. e., for the groundless institution and prosecution of the suit without probable cause. The common law did not give this *530action merely on the ground that the former plaintiff may have been unable to establish a claim asserted by a suit, although the decision of that suit might conclusively determine the injustice and wrongfulness of his claim. It allowed every man to pursue his claims by the established remedies subject to no other burthens or penalties but such as were incident to the remedies themselves in case of failure, unless he had resorted to them not only without such actual grounds as would insure success, but without even probable cause or ground for the proceeding, and therefore presumably for the mere purpose of harassing or injuring the other party, either in respect to his life, liberty, property or reputation, and the principle is the same whether the malicious proceeding be a criminal prosecution or a civil suit. In either case the wrong consists not merely in the falsity and consequent injustice of the charge or claim, but in its being made by legal proceeding without probable cause, and therefore, as the law decides, from malicious motives alone. It is questionable whether there is a sufficient negative of probable cause in the allegations of the complaint to state a cause of action against Hichols for maliciously procuring the writ of injunction, but it is not material to determine the sufficiency of these allegations now. The cause of action stated on the injunction bond is upon a contract to pay all damages which the defendant in the original suit might sustain by reason of the injunction if wrongfully issued, not exceeding the penalty, and these damages for the wrongful issuance of the injunction are recoverable without reference to the motives inducing the plaintiff to commence the action or procure the injunction. The cause of action which plaintiffs endeavor .to state against the defendant Hiehols for his malicious acts in procuring the injunction is founded upon a tort. The cause of action stated against the three defendants upon the bond *531arises upon the contract set out in the bond and they can not properly be united in this action. The superior court correctly sustained the demurrer. Adams v. Stevens, 27 N.Y.S. 993" court="None" date_filed="1894-02-15" href="https://app.midpage.ai/document/adams-v-stevens-5546304?utm_source=webapp" opinion_id="5546304">27 N. Y. Supp. 993; McKenzie v. Hatton, 29 N.Y.S. 18" court="None" date_filed="1894-06-04" href="https://app.midpage.ai/document/mckenzie-v-hatton-5546551?utm_source=webapp" opinion_id="5546551">29 N. Y. Supp. 18; Nichols v. Drew, 94 N.Y. 22" court="NY" date_filed="1883-11-20" href="https://app.midpage.ai/document/nichols-v--drew-3631202?utm_source=webapp" opinion_id="3631202">94 N. Y. 22; Chipman v. Palmer, 77 N.Y. 51" court="NY" date_filed="1879-04-08" href="https://app.midpage.ai/document/chipman-v--palmer-3622485?utm_source=webapp" opinion_id="3622485">77 N. Y. 51 (33 Am. Rep. 566); Zorn v. Zorn, 38 Hun, 67.
The judgment is affirmed.
Scott, O. J., and Anders, Dunbar and Gordon, JJ., concur.