
    Thomas McClerg, Respondent, v. Samuel E. Vielee, Justice of the Peace of the Town of Mt. Hope, and James J. Hawkins, Overseer of Highways of Mt. Hope, Appellants.
    Second Department,
    January 11, 1907.
    Abuse of legal process — complaint failing to state cause of action.
    The plaintiff sued a justice of the peace and the overseer of highways for abuse ■ of process. He alleged that summons was issued in an action in which the overseer was plaintiff to recover a fine and penalty for the plaintiff's failure to pay a highway tax; that the plaintiff was arrested on body execution issued on the judgment and imprisoned; that the arrest and legal proceedings were an abuse oí legal process, and that the defendants had no jurisdiction whatever of the person of the 'plaintiff, and that he was not liable for the road tax in that town, etc.
    
      Held, that the complaint.failed to state a cause of action;
    That the allegation that the defendants had no jurisdiction of the plaintiff was a mere conclusion of law, -unsupported by facts;
    That the statement that the arrest and legal proceedings were an abuse of legal process was insufficient, as an action would not lie thereon unless there were a willful misuse of process;
    That no facts were alleged showing that the plaintiff was not served within the jurisdiction, and that he. was not a resident of the town at the time; *
    That the complaint could not be sustained as setting forth malicious prosecution or false imprisonment, there being no allegation of malice, want of probable cause, or termination of the proceeding favorably to the plaintiff.
    Appeal by the defendants, Samuel E. Yielee, as justice of the peace, etc., and another, from an interlocutory judgment of the "Supreme Court in favor of the plaintiff, entered in the office of the.clerk of the county of Orange on the 16th day of November, 1905, as amended, upon the decision of the court, rendered after a-trial at the Orange Special Term, overruling the defendants’ demurrer to the complaint on the ground that the complaint does not set forth facts, sufficient to constitute a cause of action.
    
      R. Robertson, for the appellants.
    
      Wilton Bennet, for the respondent.
   Hooker, J.:

The defendant Yielee was a justice of the peace of Mt. Hope, and his codefendant was overseer of highways in that'town. The complaint alleges that the defendants illegally, wrongfully and without jurisdiction and unlawfully did cause to be issued a legal process against the plaintiff herein, which consisted of a summons issued by Yielee in an action wherein Hawkins was plaintiff; that the summons was served and the defendants entered up judgment for the sum of five dollars fine and penalty by reason of plaintiff’s failure to pay a highway tax in the town of Mt. Hope ; that the plaintiff was arrested on a body execution, issued upon the judgment of the justice, and imprisoned thereunder, by reason of which he has suffered mental, physical and moral injury; that the .arrest and legal-proceedings were1 an abuse of legal process and that the defendants had no jurisdiction whatever of the person of the plaintiff; that the plaintiff was not liable for road tax in the town of Mt. Hope, and that the defendants had no legal right to sue or “ in any .way-issue any process against this plaintiff for the collection of highway tax in the town of Mt. Hope.”

The allegation that the defendants-had no jurisdiction of the person of the plaintiff, doubtless meaning thereby that the justice had no jurisdiction, is, of course, a statement of a conclusion of law, and / no facts are alleged in the complaint which can sustain it.

The complaint is not sufficient as setting forth a cause of action for an abuse of legal process; the mere statement that the arrest and legal proceedings constituted such abuse is not enough; such an action will not lie unless there has been willful misuse of the process of the court to the injury of the plaintiff. There is no allegation in the complaint to negative the presumption that both of the defendants were proceeding honestly and in the utmost good faith as public officers to discharge their respective duties. The Justice’s Court had jurisdiction of the subject-matter, for aught that appears; MeClerg may have been served with a summons while he was within the town where the justice resided, and while the allegation appears in the complaint that he was a resident of the town of Deer Parle at one time, it does not appear that he was not a resident of said town at the time when he became liable for the payment of the road tax, which was sought to be enforced in the action before the justice. The allegations of the'complaint make it appear that the use of'the process complained of was clearly legitimate. The legal conclusions reached by the justice may or may not have been correct; such conclusions are to be reviewed in the methods prescribed by the Code and not by actions for the abuse of legal process. The complaint is even silent as to whether the judgment was ever appealed from and, if so, how the appeal resulted.

Of course the complaint cannot be sustained, as setting forth a cause of action for malicious prosecution- or false imprisonment; there are no allegations of malice, want of probable cause, termination of the action favorably to the plaintiff or the invalidity of the execution or the judgment upon which it was issued.

The interlocutory judgment should be reversed and the demurrer sustained, with leave to the plaintiff to plead over upon the usual terms.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred. ■

Interlocutory judgment reversed, witlv-costs, and demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint upon payment of costs within twenty days.  