Sprague v. Parsons

J. F. Daly, J. [After stating the facts as above.]—The allegation of the complaint that the attachment Was wholly illegal and unauthorized by law and the court had no jurisdiction to issue the same and the same was null and void, is a statement of a conclusion of law, and sets forth no facts whatever (Hammond v. Earle, 58 How. Pr. 426). The allegation that the action in which the attachment was issued was an action against this plaintiff and others to charge them with liability for the debt of the McKillop & Sprague Company, of which corporation it was claimed that the defendants in that suit were trustees, does not show that the action was one in which an attachment was unauthorized. It does not state that the defendants therein were sought to be charged with liability as trustees. The liability with which they were sought to be charged might have been that of surety, and yet the allegation would have been true ; the claim that they were trustees not being averred as the ground of action. As, therefore, that action may have been an action for a money demand on contract, for aught that appears in the complaint in this action, it is not shown that the attachment was unauthorized in the action. Nothing is left therefore but the allegation that the attachment was vacated on motion. But it is not alleged that it was vacated for irregularity, nor as being un author [555] ized. It might have been vacated for error upon a question of fact upon opposing affidavits. Unless unauthorized or irregular an action of damages (not brought upon the undertaking) could not be maintained (Day v. Bach, 87 N. Y. 56). It appears, therefore, that no facts were stated in the complaint constituting a cause of action, and the complaint was properly dismissed. On the argument of a demurrer to the original complaint in this action (it has since been amended), I held that the complaint might be sustained as upon an attachment set aside for irregularity (12 Daly 392); but that point was evidently not discussed by counsel. Judgment should be affirmed, with costs. Bookstaver, J., concurred. Judgment affirmed, with costs.