
    HIGGINS v. DEWEY.
    
      N. Y. Common Pleas, General Term;
    
    
      May, 1891.
    1. Appeal; review of city court order.] Upon appeal to the court of common pleas from an order of the city court of New York, affirming an order of the special term of that court setting aside service of process on the ground that the party served was enticed within the jurisdiction, the questions of fact involved, when based upon sufficient evidence, are not open to review.
    
    2. Service; setting aside.] The inveigling of a defendant into the jurisdiction with the purpose of serving him with a summons and order of arrest, is sufficient ground in law for setting aside the service of such process and arrest; but does not require that the order of arrest be itself vacated.
    Appeal from order of General Term of City Court of New York. This action was brought by Eugene Higgins and John D. Wood against William C. Dewey. The facts are fully stated in the opinion.
    
      Henry L. Langdon, for plaintiffs.
    
      F. A. Burnham, for defendant.
    
      
      
         See note at the end of the next case.
    
   Pryor, J.

A summons having issued, and an order -of arrest against the defendant having been obtained because of fraud in incurring the liability upon which he was sued, on motion at special term of the city court, the service of the summons and of the -order of arrest, and the order of arrest itself, were vacated and set aside, on the ground that the plaintiffs ¡had enticed him into the jurisdiction of the court for the purpose of such service and arrest. On appeal to the general term, the order of the special term was affirmed, except in so far as it vacated the order of arrest, and in this particular it was reversed. From so much of the order of the general term of the city court as affirms the order at special term, the plaintiffs appeal; from so much of the order of the general term as reverses the order at special term, the defendant appeals.

The finding of the special term of the city court on sufficient evidence, that the defendant was enticed within the jurisdiction for service and arrest, having been affirmed by the general term, is not open to review upon this appeal, but must be accepted by us as an incontrovertible fact in the case (Stringfield v. Fields, 13 Daly, 171; Walsh v. Schulz, 12 Daly, 103 ; McEteere v. Little, 8 Daly, 167 ; Clarke v. Lourie, 82 N. Y. 580; Allen v. Meyer, 73 N. Y. 1).

The question, then, is whether the inveigling the defendant into the jurisdiction with the purpose of subjecting him to process and arrest, be sufficient ground in law for setting aside the service of such process and arrest; and that it is so sufficient the authorities do not leave us at liberty to doubt (Dunham v. Cressy, 21 St. Rep. 266; Martin v. Woodhall, 21 St. Rep. 465 ; Ziporkes v. Chmelniker, 15 St. Rep. 215 ; Baker v. Wales, 14 Abb. Pr. N. S. 331; Carpenter v. Spooner, 2 Sandf. 717; Smith v. Meyers, 1 T. & C. 665 ; Browning v. Abrams, 51 How. 172 ; Slade v. Joseph, 5 Daly, 187; Lagrave’s case, 14 Abb. Pr. N. S. 333, note ; Steiger v. Bonn, 59 How. Pr. 496 ; Goupil v. Simonson, 3 Abb. Pr. 474; Williams v. Bacon, 10 Wend. 636 ; and citations infra).

It results, therefore, that so much of the general term order as affirms the order at special term, is •correct and must be sustained. I

On the defendant’s appeal the question is, whether it • was error merely to set aside the arrest, instead of ¡ vacating the order of arrest itself ? i

The plaintiffs contend that whether the court should have set aside the arrest only or the order also, was matter of discretion, and so is not reviewable by this ' tribunal. But, the adjudication of the general term of ; the city court proceeded expressly on the ground that the order of the special term vacating the order was erroneous as matter of law ; and this ruling presents a question for our consideration (Tilton v. Beecher, 59 N. Y. 176; Tolman v. Syracuse etc., R. R. Co., 92 N. Y. 353).

Was it legal error to refuse to vacate the order of arrest, because the arrest was wrongfully effected ? The validity of the order is unchallenged and unchallengeable. It was duly awarded, upon sufficient ground, and by competent authority. The vice complained of is not in the order but in the manner of its service; and logically the remedy should be directed against the wrong. Moreover, by his discharge from arrest the defendant received complete reparation for his injury. An order valid in itself cannot be invalidated by faulty execution ; and the redress is perfect when the fault in execution is corrected. No legal principle or exigency of justice requires that the remedial provision should reach beyond the wrong and suppress the right as well. The defendant argues that here was an abuse of process, and an abuse of process will be corrected by the court. True, the court will see that its process be not abused; but, to remedy the abuse is. one thing, to abolish the use quite another. The abuséis corrected by relieving from its consequences, and, in a proper case, remitting the injured party to his. action for damages. Here, however, was no abuse of process. Process is abused when perverted to a purpose, beyond or beside its legitimate scope and office (Benninghoft v. Oswell, 37 How. Pr. 235 ; Grainger v. Hill, 4 Bing. N. C. 212 ; Rossiter v. Minnesota etc. Paper Co., 37 Minn. 296), while in the present case the order of arrest was applied to the very purpose for which it issued. True, defendant was.exempt from arrest under the order so obtained ; but arrest of a privileged person gives no action for false imprisonment (Deyo v. Van Valkenburg, 5 Hill, 244; Smith v. Jones, 76 Me. 138 ; 49 Am. Rep. 598).

In reason, therefore, the remedy for a wrongful arrest under a valid process, is the discharge of the person and not the vacation of the process. And so-are the authorities. In Barlow v. Hall, 2 Ans. 461, a party was confined without writ until a writ could be obtained, and then arrested upon it. The court said:. “ The defendant has been seized illegally ; that illegal confinement has been , continued under our process. He must be discharged.” In Lyford v. Tyrrell (1 Ans. 85), the defendant was seized Sunday and detained until Monday, when he was arrested on a debt of ^500. He was discharged. In Luttin v. Benin (11 Modern, 50), Holt, C. J., said: If a man is wrongfully brought into jurisdiction, and then arrested, yet he ought to be discharged.”

“If the party be illegally arrested or detained, -though the process be valid, this is ground for his discharge ” (3 Hill, 666, note; Loveridge v. Plaistow, 2 H. Black. 29 ; Birch v. Prodger, 1 B. & P. [N. R.] 135 ; Wells v. Gurney, 8 B. & C. 769, and cases supra).

Often as the courts have relieved from arrests obtained by enticing the party within the jurisdiction counsel for defendant adduces but four instances in which, as he alleges, the process itself has been vacated. But, he is mistaken in his construction of three of those cases. In Lagrave’s case (14 Abb. Pr. N. S. 333), note, there was a technical abuse of process, in instituting a criminal proceeding for a civil purpose ; but the prisoner was merely “discharged from the orders of arrest” (p. 343)—the orders themselves not being disturbed (Benninghoff v. Oswell, 37 How. 235), again was an abuse of process by an arrest on a criminal charge for the purpose of coercing settlement of a private claim ; and here, too, “ The arrest was set aside,” but not the order (p. 236). In Seaver v. Robinson (3 Duer. 622), the defendant was served with a summons here while attending as a witness from another State, and “ the service of the summons was set aside.” In Harland v. Howard (57 Hun, 113), the defendant was forcibly detained until the sheriff could arrest him on civil process; and the adjudication was, that “ he should be released.” True, the court vacated the order of arrest; but no authority was cited or reason given for the ruling; nor does it appear that attention was directed to the distinction between setting aside the arrest and vacating the order —a distinction recognized and respected in Metcalf v. Clark (41 Barb. 48). In that case the service of the summons—not the summons itself—was set aside ; and the attachment was vacated, because “ in no case is a warrant of attachment authorized against executors.”

Upon principle and authority, therefore, the general term of the city court rightly reversed the order vacating the order of arrest.

It follows that the order appealed from should be affirmed ; but without costs to either party.

Allen and Bischoff, JJ., concurred.  