
    FISCHER v. LANGBEIN.
    
      Supreme Court, First Department, First District; General Term,
    
    
      August, 1883.
    [Affirming 10 Abb. N. C. 128.]
    Action fob False Impbisonment.—Attobnby’s Liability.—Eeeob of Count.—Jubisdiction.—Pbocess.
    Where a court has jurisdiction of the subject-matter of the action and of the person, and the papers presented by the attorney are regular upon their face, and the court after consideration, and after hearing and acting judicially upon the papers, orders a commitment, and the same is afterward set aside and vacated upon the ground of error in the court, such error of the court is not only a protection to the attorney, but to every other person for acts done under such erroneous process, and the attorney is not liable therefor.
    Appeal from a judgment at a special term before the court and jury dismissing the plaintiff’s complaint.
    The action was brought by John Fischer, to recover the sum of §30,000 damages against the defendants, George F. and J. C. Julius Langbein, who are attorneys and counselors at law, for false imprisonment. The „ complaint alleges that the imprisonment was malicious, unlawful and wrongful. No malicious acts on the part of the defendants against the plaintiff were proven on the trial.
    Mr. justice Lawrence dismissed the complaint at the trial, holding, generally, that if any wrong was done to the plaintiff in the case, it seemed to him to have proceeded from the error of a judicial tribunal, for which an attorney and counselor could not, and ought not to be held liable ; and that it appeared from the testimony in the case that not only was the course of the Messrs. Langbein predicated upon the action of the court of common pleas, but it was certainly sustained by the judicial determination of two justices of the supreme court, presiding Justice Davis and Judge Brady. [The decision below is reported in 10 Abb. N. C. 128 ; and in 62 How. Pr. 238.]
    
      C. Bainbridge Smith, of counsel (Messrs. Henry Wehle, Charles H. Cordan and Charles Wehle, attorneys), for plaintiff, appellant.
    
      Albert Cardozo, of counsel, for defendants, respondent (Jesse K. Furlong, attorney for respondent J. C. Julius Langbein ; George F. Langbein, for himself, in person).
   Beady, J.

The appellant was a member of the “ Kranken Understutungs Verein Deutsche Treu and Einigkeit,” and commenced an action in the court of common pleas against the individual members of the association to dissolve it, and applied for an injunction to restrain the disposition of its funds. Epon such application he was met by the affidavits of forty-two members of the society, represented by J. C. Julius Langbien as attorney of record. The plaintiff, through his counsel, thereupon charged that these forty-two members who had made affidavits, being Germans and unacquainted with the English language, were misled in signing and swearing to their affidavits containing averments prejudicial to his application, and it was agreed that the truth or falsity of this charge should determine whether he should or should not pay the referee’s fees. If the forty-two members, or a majority of them, swore that they made the .statement which appeared in the affidavit, the plaintiff was to pay the fees. An order of reference, containing that provision in substance, was thereupon entered by consent. The learned justice who made the order in a subsequent proceeding said in reference to it: “Knowing the expense and vexation to parties, of reference to determine disputed facts arising in the course of a motion, I endeavored to dissuade counsel from this course, but the course was taken upon the strict agreement as to paying the expense which is embodied in the order of September 17,1878, directing the reference. ” Fischer v. Raab, 56 How. Pr. 218.

The referee, after a bitter contest, and it seems a protracted and tedious litigation, found in favor of the defendants. His fees were $130. Due notice was given that his report was ready for delivery. The plaintiff, however, neglected to take it up ; whereupon, upon application by the defendants’ attorney, an order was made requiring the plaintiff to pay to the referee his fees within three days, or show cause why he should not be committed, and the injunction vacated, and the motion for injunction and the appointment of a receiver denied, and his proceedings stayed until such fees were paid. The plaintiff was heard upon the return of the order to show cause ; and the learned judge presiding expressed, in an elaborate opinion, his views upon the subject, and determined that the commitment should issue, which was accordingly done on December 4, 1878. On December 5, 1878, the plaintiff obtained a writ of habeas corpus, which was returnable at a special term, and an order was made on December 7, two days subsequent, dismissing it, with costs, and remanding the plaintiff. The opinion of the court was expressed upon the subject, and declared that the relator desired a reference for a particular purpose, and it was granted on his stipulating to pay the referee’s fees in a certain contingency; -that the event had occurred, and the court had directed the payment of the fees, in accordance with the compact made ; that he refused or declined to pay, and for this contempt was committed. And it was held that the power of the court to commit under the circumstances admitted of no doubt; that the expensive process was adopted as a favor to the relator on his promise to pay, and he was bound to keep it (People ex rel. Fischer v. Reilly, 61 How. Pr. 223).

On December 27, 1878, the plaintiff obtained another writ of habeas corpus, which was also dismissed and the plaintiff remanded to jail.

It appears further that in March, 1879, the general term of the court of common pleas reversed the order of commitment upon the ground that the right to do so of the clerk of the defendants’ attorneys who made the demand for the payment of the referee’s fees, was not exhibited. “But,” the court added, “in view of the bad faith exhibited on his side, we shall not award costs to the plaintiff; and we make it a part of the terms of reversal, that the plaintiff shall stipulate not to bring any action on account of his imprisonment. The stipulation must be handed up with the proposed order of reversal.” The stipulation was not given, and the court affirmed the order (Fischer v. Raab, 58 How. Pr. 221). The plaintiff then appealed to the court of appeals, where the order was reversed (Fischer v. Raab, 81 N. Y. 235). Subsequently this action was brought against the defendants, as the attorneys and counsel for defendants in the original suit, to recover damages for false imprisonment.

Upon the trial the facts thus stated appeared with others to which it is not deemed necessary to refer, and the complaint was dismissed.

The action was predicated upon the proposition that the' process of commitment was absolutely void, and it is supposed that the court of appeals, on the appeal just referred to, so declared. It is not understood that the opinion proceeded to any such length. The court said, at the conclusion of the, opinion delivered :

“ So far as appears in the papers before us, the sole purpose of the proceeding was to compel the payment for the benefit of the referee, as the defendants were not liable to pay him. The plaintiff ought to pay the referee, but this is not the remedy to compel such payment.
“Before a party can be imprisoned for contempt, a reasonably clear case, upon the law and the facts, should be made, and it is quite certain that such a case was not made here. ”

And the court then said:

“ Therefore, without passing upon the particular points determined at the general term, we are of opinion that the order of the special and of the general term should be reversed, with costs on the appeal to this court to the appellant. ”

The effect of the stipulation upon which the court below proceeded, and which influenced the judgment of the court on the first application to be discharged, does not seem to have received any particular consideration in the court of appeals, although it is regarded as a very vital element in the whole proceeding.

The court of appeals is, therefore, regarded as having declared ■ the process to have been erroneously issued. The jurisdiction of the court of common pleas in the action pending before it cannot be questioned, nor can the power of the court to punish by commitment in a proper case. The court of appeals held simply that the process was erroneously issued, and there is no suggestion anywhere that it was absolutely void. And having been erroneously issued, there can be no question that the imprisonment under it could be justified ; and more particularly because it was issued upon an application to the court, and allowed after due deliberation by the court to which application for it was made.

In reference to the right to justify under erroneous process, see Day v. Bach (87 N. Y. 56), in which the subject is fully and elaborately discussed; and as to the effect of process issued upon due deliberation, see Landt v. Hilts (19 Barb. 283).

For these reasons, in addition to those which were assigned by the learned justice at the time of the dismissal of the complaint, it is thought that the judgment should be affirmed.

Davis, P. J., and Daniels, J. concur.  