Petry v. Charles H. Childs & Co.

Cochbame, J. The undisputed facts disclosed in this case do not establish plaintiff’s right to recover. Although this is not an action for a malicious prosecution, but for an abuse of process, nevertheless in all actions of this character to which my attention has been called, there has existed the element of intentional wrongdoing or a wanton attempt to pervert the processes of the law from their proper use and design. While it may not be necessary to prove malice as against the plaintiff, there must be the intent to do something wrong, or to make a willful misuse of the court or its process, for the purpose of improperly accomplishing some ulterior or collateral purpose which could not be obtained by direct and straightforward methods. In some' of the authorities the action is referred to as one for “ malicious abuse of process.” In Brown v. Feeter, 7 Wend. 301, it was said: “If the declaration charges the act to have been wrongfully and willfully done, and the evidence supports the allegation, it is sufficient.” It was found as a fact in that case that a judgment on which an execution had been unlawfully issued “ was paid and satisfied, and that the defendant with a full knowledge of that fact, and with the intent to injure the plaintiff, issued the execution.” A similar state of facts existed in the case of Barnett v. Reed, 51 Pa. St. 191. So in Dishaw v. Wadleigh, 15 App. Div. 205, it was said: “ It was sought by trickery and cunning to pervert the processes of the law from their proper use and design, in order to reach a result which it was thought could not be arrived at by the ordinary and legitimate procedure of the courts.” In Hazard v. Harding, 63 How. Pr. 326, the complaint alleged an unlawful and malicious contrivance, purpose and intent to injure, harass and distress the plaintiff and to compel him through fear and duress of imprisonment, to pay an unlawful and fictitious debt, and this allegation on demurrer was held to be good. In Paul v. Fargo, 84 App. Div. 14, the distinction between an action of this kind and one of malicious prosecution is pointed out, and cases for an abuse of process were referred to. It was there said by the court, referring to an [111] action such as this: “ Proof of malice is not important, except as it may tend to aggravate damages. It is enough that the process was willfully abused to accomplish some unlawful purpose.” The facts in this case do not permit an inference of any unlawful purpose or intentional wrongdoing on the part of this defendant. A controversy existed between the parties as to a portion of the claim which was within the demand of the complaint in the former action. Childs & Go. contended that there was a balance of sixteen dollars due in the former action. Petry was fairly apprised of this claim against him, not only by the complaint in that action, but specifically by the letter of September twenty-fifth, written to and received by him after he had sent his check. For fifteen days after the receipt of that letter he might have interposed an answer, which, if his theory was correct, would have absolutely defeated that action. He was not misled or lulled into a feeling of security by anything which Childs & Go. did. Its position was open and above board. Petry suffered himself to get in default. After his default, Childs & Go. did not enter judgment until its attorneys had twice written him of their intention to do so. And not until eight days after they had last written him to that effect, and eighteen days after the default was complete, was judgment entered. Even after Petry was in default there was a period of eighteen days during which he might have sought permission of the court to interpose an answer, and in the meantime have stayed the proceedings of Childs & Go., as he subsequently did after the judgment was entered. It is not very material whether, or not the contention of the plaintiff in that action was correct as to the unpaid costs. Such contention, right or wrong, was manifestly made in good faith. The proper -reiiiedy on the part of Petry was to interpose an answer to that- action. Failing to do so, and refusing to comply with the demand of Childs & Go., there was nothing left for the latter to do but to enter judgment or abandon its claim. The judgment was regularly entered, [112] with full knowledge on the part of Petry that it was to be so entered, and after ample opportunity before his default to interpose an answer, and after his default to make a mo? tion for leave to interpose such answer. His position is no different from that of any other person who suffers default and permits a judgment to be entered against him. If this action can prevail, then any person who is sued may make default in pleading and then maintain an action like this, merely by showing that he had a defense to the action in which he so suffered default. For the reasons above stated, the complaint at the trial was properly dismissed, and it is unnecessary to consider whether the plaintiff in the former action waived its right to costs by accepting the check of Petry, or the effect on this action of the order in the former action made by Mr. Justice Andrews at Special Term. Motion denied.