Main Electric Co. v. Cohen

Gerard, J. The learned court below held that the complaint did not state facts sufficient to constitute a cause of action. Plaintiff alleges that it is a domestic corporation, with its principal place of business in the borough of Manhattan; that, about November 15, 1910, the defendant Hunnekes brought an action in the Municipal Court, through the defendant Cohen as his attorney, and that thereafter Cohen wrongfully and improperly caused a return to be made to the court of due service of alias summons and complaint upon the plaintiff, which was returnable ¡November thirtieth, notwithstanding the fact that such service had not been made, and that thereafter judgment was improperly entered in favor of said defendant Hunnekes against plaintiff for $314.50; that thereafter defendants wrongfully caused execution to be issued upon the said judgment, which execution was delivered to a city marshal who made a levy on articles' of plaintiff; that the goods were injured, plaintiff compelled to pay a fee to the marshal, to employ counsel, lose, time and pay for legal services. The complaint shows that the judgment was subsequently set aside. The Municipal Court had jurisdiction as for an injury to property which has been held to mean every invasion of one’s property rights by actionable wrong. Ghiglione v. Friedman, 115 App. Div. 606. Only one cause of action is recited, although various items of damages may spring from one and the same wrong. In Fischer v. Langbein, 103 N. Y. 84, it is stated: “ It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is liable for the damages thereby occasioned;” [32] and, when the attorney conducts the suit in such a way as to be liable himself in an action for trespass, his client is also liable. Newberry v. Lee, 3 Hill, 523; Poucher v. Blanchard, 86 N. Y. 256. The complaint states facts sufficient to constitute a cause of action, which is based upon the return of service upon the plaintiff here of an alias summons, in an action where plaintiff here, defendant there, had not been served. The addition of the words “ improperly ” or wrongfully ” does not detract from plaintiff’s cause of action, and it sets forth sufficient facts to entitle it to relief. Interlocutory judgment reversed and demurrer overruled, with costs, with leave to defendants to answer within six days upon payment of costs in this court and in the court below. Seabury and Lehman, JJ., concur. Judgment reversed.