
    Joseph T. Farrington, Appellant, v. Edwin B. Root et al., Respondents.
    (New York Common Pleas
    General Term,
    December, 1894.)
    An attachment on an affidavit which, in form, complies with all the requirements of the Code, is not irregular.
    If the statement in the affidavit as to the indebtedness be such as to call for a judicial determination whether apparently the amount be in excess of counterclaims, the attachment, though erroneous and vacated, is not void, and affords a protection to all parties acting under it. Distinction between erroneous, irregular and void process, and the effect of each in justification of a trespass.
    Appeal from judgment on dismissal of the complaint. The opinion states the case.
    
      Samuel C. Mount, for appellant.
    
      Charles De Han't and Henry O. WiTloox, for respondents.
   Petob, J.

Under an attachment the defendants, it is alleged, took or were concerned in taking the plaintiff’s goods. Pursuant to a motion upon the papers on which the attachment issued it was vacated; but it is not apparent in the order that the supersedeas proceeded on the ground that the process was either void or irregular.

The action in which the attachment issued was upon a promissory note, and against maker and indorser. It was the indorser’s goods that were taken, and it is he who sues in the present action.

The attachment is challenged as void or irregular because the affidavit fails to show that the plaintiffs are entitled to recover the sum stated over and above all counterclaims known to the plaintiffs. Code, § 635. The affidavit, properly by a third person, alleged, on information and belief, that the plaintiffs are entitled to recover from the defendants the sum of about $1,416.70, with interest, over and above all counterclaims known to the plaintiffs; ” and that the source of deponent’s information and the grounds of his belief are that his firm has possession of the notes mentioned in the complaint, and of the notarial certificates of demand and notice of dishonor, copies of which are annexed.”

At the close of the case the complaint was dismissed.

The cause has been argued with commendable research and ability; but, after all, the question upon which the appeal depends is of obvious and easy solution.

The action is for trespass to property. But the chattels were taken under attachment; and, although set aside, the process, unless irregular or void, is a perfect protection to all the defendants. Marks v. Townsend, 97 N. Y. 590, 597 ; Day v. Bach, 87 id. 56, 61 ; Fischer v. Langbein, 103 id. 84, 93.

Process may be erroneous only, for which, being the fault of the court, the party is not responsible; or, it may be simply irregular, and so valid until vacated, but when vacated it is no protection, because the fault of the party; or, again, it may be void, and being an absolute nullity from the beginning, it is no justification even before supersedeas. Woodcock v. Bennet, 1 Cow. 711, 735 ; Day v. Bach, 87 N. Y. 56, 61 ; Chapmam, v. Dyett, 11 Wend. 31.

“ An irregularity in practice may be defined to be the want of adherence to some prescribed rule or mode of proceeding. And it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner.” Tidd’s Practice, 512 ; Bowman v. Tallman, 2 Robt. 632, 634. In the case before us the affidavit upon which the attachment issued complies, in form, with all the requirements of the Code, and the only vice imputed to it is that it did not furnish sufficient evidence to the court of the absence of counterclaims against the debt. This plainly was no iregularity.

Bor was the attachment void. The court had jurisdiction; and the evidence before it presented “ a colorable case,” and called for a judicial determination whether apparently the amount of the indebtedness was in excess of counterclaims. Fischer v. Langbein, supra ; Globe, etc., v. Bilbrough, 2 Misc. Rep. 100 ; 49 N. Y. St. Repr. 702. The decision was erroneous and was rightly reversed; but, even so, the process was still a protection to all parties. Cases supra, and Wessels v. Boettcher, 142 N. Y. 212 (where observe an instance of the prevalent ambiguity in the use of the word “ irregular ”).

An order founded on an insufficient affidavit is not void, but has vitality enough to support a proceeding for contempt (Fleming v. Tourgee, 16 N. Y. Snpp. 2) ; a fortiori, to justify an alleged trespass.

Other points presented by counsel need no consideration.

The plaintiff is not without redress, but has only misconceived his remedy. Upon proper allegations and proof, he may maintain an action in the nature of malicious prosecution. Burton v. Knapp, 81 Am. Dec. 476, note.

Judgment affirmed, with costs.

Bisohoff, J., concurs.

Judgment affirmed, with costs.  