Barsotti v. Peirano

The facts as stated in open court are as follows; On the 19th of March, 1914, the defendant herein commenced an action in the Supreme Court against this plaintiff as defendant in that action, and on that day obtained an attachment against the property of the defendant, which consisted of an Italian daily newspaper, known as II Progress©, then situated at No. 42 Duane street, in the borough of Manhattan, city of New York. The sheriff of the county of New York duly attached the newspaper, putting in charge his deputies, and also attaching the bank account of this plaintiff. Thereafter this plaintiff, the defendant in the Supreme Court action, gave a bond to release the attachment, and thereupon paid the sheriff the sum of $166 as poundage in order to obtain the release of his levy. The attachment in the Supreme Court action was granted because of the defendant’s (Barsotti’s) nonresidence in this state. It is conceded that the defendant was a nonresident, so that the attachment was properly issued pursuant to section 636, subd. 2, of the Code of Civil Procedure. In June, 1915, the action in the Supreme Court came on for trial before a justice of the Supreme Court and a jury, and a verdict was returned by the jury for the defendant on the merits. Judgment was entered thereon, and on an appeal to the Appellate Division the judgment was affirmed.

[1] The plaintiff now brings an action in this court against the defendant to recover damages in the sum of $1,000 for the wrongful attachment issued against this plaintiff’s property, the defendant in the former action, and he is the only person made a party defendant herein. The Surety Company, which gave the statutory bond pursuant to section 640 of the Code, is not joined. It is the contention of the plaintiff that as a matter of law a right of action exists in his favor for damages growing out of the said wrongful attachment against this defendant as principal, and the plaintiff in this action contends that his recovery is not limited to the amount specified in the undertaking, and that he is entitled to actual damages. He concedes that the writ of attachment was properly issued, that the court issuing the writ had jurisdiction, that the sheriff making the levy was entitled to proceed to execute the writ, and that no motion was made to vacate the said writ; but he claims that the ultimate determination of *846the action proved that the plaintiff had no claim, and that the attachment, although rightful in its inception, became wrongful, and that it developed on the trial that the plaintiff had no cause of action upon which an attachment could be based for any purpose.

I am inclined to hold that this action is one over which this court has no jurisdiction. Section 6, subd. 1, of the New York City Municipal Court Code of 1915 reads:

“Sec. 6. Jurisdiction. The Municipal Court of the City of New York shall have jurisdiction: 1. Of the following actions when the amount claimed in the summons does not exceed one thousand dollars, exclusive of interest and costs: * * * An action to recover damages, * * * for a personal injury or an injury to property, except actions to recover damages for * * * malicious prosecution. * * * ”

The plaintiff contends that the facts as alleged by him spell out a cause of action which may be properly classed as an injury to property. With this contention I am constrained to disagree. In the case of Mark v. Hyatt, 135 N. Y. at page 310, 31 N. E. at page 1100 (18 L. R. A. 275), the court says:

“We have held that doctrine quite firmly and clearly in cases of injunctions, declaring in substance that, although the restraining order ought not to have been granted and was set aside for that reason, yet the damages incurred, where the proceedings have been regular, cannot be recovered, in the absence of an undertaking, except upon the basis of a malicious prosecution. Lawton v. Green, 64 N. Y. 326; Palmer v. Foley, 71 N. Y. 106.”

In Palmer v. Foley, 71 N. Y. 108, the court, through Mr. Justice Folger, says:

“It seems that without some security given before the granting .of an injunction order, or without some order of the court or a judge requiring some act on the part of the plaintiff which is equivalent to the giving of security— such as a deposit of money in court—the defendant has no remedy for any damages which he may sustain from the issuing of the injunction, unless the conduct of the plaintiff has been such as to give ground for an action for malicious or vexatious prosecution. * * * This is upon the rule that any one may proceed to enforce a legal right in a civil action, and that, though he did it maliciously, he is not liable therefor, if there be probable cause or ground for it (Warner v. Matthews, 6 Mod. 73); for in a civil action the defendant has his costs. * * * Where process sued out by a party is afterwards set aside for error, the party is not liable in an action for damages ; where it has been set aside for irregularity, or bad faith in obtaining it, he may be. Williams v. Smith, 14 Com. Bench (N. S.) 596, 108 Eng. Com. L. R. 594. See also Miller v. Adams. 52 N. Y. 409; Carl v. Ayers, 53 N. Y. 14; Marks v. Townsend, 97 N. Y. 598.” ,

In Willard v. Holmes, Booth & Haydens, 142 N. Y. 495, 37 N. E. 480, the court, through Mr. Justice Gray, says:

“But I am prepared to assume that there may be satisfactory authority for holding that where a party has been subjected to some special or added grievance, as by an interference with his person, or property, in a civil action brought without probable cause, he may maintain a subsequent action to recover any legal damage, which he avers, and is able to show, to have been occasioned to 'him. Bump v. Betts, 19 Wend. 421; Whipple v. Fuller, 11 Conn. 582 [29 Am. Dec. 330]; Potts v. Imlay, 4 N. J. Law, 330 [7 Am. Dec. 603]; Mayer v. Walter, 64 Pa. 283; and Cooley on Torts, page 187. The action generally is'not to be viewed with any favor; for, in theory of law, the costs awarded by_the ..statute to the successful defendant are an adequate compensation to him for ,all .damages.

*847In Lawton v. Green, 64 N. Y. 331, the court says:

“The security required is provided for by statute [for obtaining provisional remedy], the court or judge fixes the amount, and the undertaking may be executed bv the party alone or with sureties, and in either case the measure of liability" is the amount specified, and beyond that, amount the court has no power to award damages. An action will lie against a plaintiff for all damages sustained, but it must be in the nature of, and have the elements of, an action for malicious prosecution.”

It follows necessarily that upon the theory which plaintiff adopted, and on which his claim for damages rests, the action is one for a wrongful suing out of an attachment, and is therefore in effect one for malicious prosecution, over which this court has no jurisdiction.

[2] Parenthetically it may be stated that plaintiff’s remedy in this court is one on the undertaking. The plaintiff has requested that, in view of the expression of the opinion by the court, he be allowed to amend his complaint, so that his action may sound as one on the undertaking, and that he be permitted to bring in the Surety Company, as party defendant. Under the former provisions (Municipal Court Act) relating to the amendment of pleadings, the courts have held that it is the mandatory duty of the court to- allow a pleading to be amended, even though the amendment changes the entire cause of action. Univ. Cutter Co. v. Emden, 107 N. Y. Supp. 669; Shirtcliffe v. Wall, 68 App. Div. 375, 74 N. Y. Supp. 189. This seems to have been continued in the present New York City Municipal Court Code. Section 93 of the Municipal Court Code, subd. 2, reads:

“At any stage of the cause the court must allow amendment of any * * * pleading * * * if substantial justice will be promoted, thereby; and as a condition thereof may impose such terms as may be just.”

I am therefore inclined to- grant the amendment. The defendant has raised the question of a set-off to the plaintiff’s cause of action (assuming that the complaint may be amended), which consists of the costs awarded to the present plaintiff in the Supreme Court action. That he may plead the costs as a set-off in the present action there can be little question, but this is unnecessary to be determined in. the present application.

[3] As to the joining of the Surety Company as a party defendant, this may he done under section 27, subd. 2, of the New York City Municipal Court Code, but it should be done in the manner provided by Code of Civil Procedure, § 453. The motion to amend is therefore granted upon the payment of $5 costs—the plaintiff to file his amended complaint with the clerk of this court on or before the 20-th of March, 1916, and serve a copy of the same on or before said date on the defendant’s attorney; the defendant to serve his amended answer thereto on or before the 27th of March, 1916; and after joinder of the issue the same may be brought for trial pursuant to section 95 of the New York City Municipal Court Code.