
    Blynn v. Smith et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1889.)
    1. Attachment—Vacation—Entry or Judgment.
    A judgment for defendant in an action before a justice of the peace, in which an attachment is issued, vacates the warrant of attachment.
    2. Same—'Unlawful Levy—Damages.
    The levy of a warrant of an attachment unlawfully issued entitles the defendant to nominal damages, and he need not show that the levy was accompanied by damages.
    
      3. Same—Nominal Damages.
    Where the complaint does not allege that the property levied on was not after-wards returned, or that damages had been incurred as counsel fees, and there is no proof of any injury to credit caused by the attachment, plaintiff is only entitled to nominal damages.
    Appeal from Queens county court.
    Action by Bessie H. Blynn against Tredwell D. Smith and William G-. Beed, commenced before Thomas D. Smith, Esq., justice, in the town of Hempstead, to recover damages for the unlawful issue of an attachment in an action commenced by defendant Smith against plaintiff before Justice De Mott, in which action a bond was given by defendant Beed as surety, as required by Code Civil Proc. § 2909. The cause was tried before a jury, who returned a verdict for defendants, and plaintiff appealed to the county court, alleging as errors, among other things, the refusal of the justice to charge that the dismissal of the complaint and judgment for defendant in the original action vacated the attachment, and leaving that question to the jury; and also the refusal to charge that the mere entry into defendant’s house was of itself sufficient cause to entitle her to damages, and charging that the proof of entry must be accompanied by proof of damages. The county court reversed the judgment of the justice, delivering the following opinion; “I am of the opinion that the judgment appealed from should be reversed. The plaintiff proved, by competent evidence, the proceedings had in the action brought by the defendant Tredwell D. Smith against the plaintiff and her husband, before Justice De Mott. This showed the commencement of the action, the execution ■of the undertaking, the issuance of the warrant to Constable Eldert, the levy thereunder, the return, inventory of property attached, and the judgment in favor of Mrs. Blynn, who was the defendant tlierSn, and the plaintiff herein. The evidence further established that the property taken under the warrant belonged to Mrs. Blynn; that a portion of it, of the value of $15, was not returned to her; and that she paid several sums for counsel fees in the defense of that action. This was not controverted. Upon this proof the plaintiff herein was entitled to a verdict in her favor. The judgment in the action brought by Smith, with proof of title in Mrs. Blynn of the property attached, established that the entry and taking were unlawful. She was entitled to nominal damages therefor, at least in the absence of further proof of actual damage, and its extent. Groat v. Gillespie, 25 Wend. 383. The charge of the justice that a recovery of damages could only be had when accompanied by proof of actual damages was therefore error. It is unnecessary to consider other and obvious errors to the appellant’s prejudice which appear by the return. The case of Northrup v. Garrett, 17 Hun. 497, is in point, and sustains the views above expressed. Let judgment be entered by the clerk reversing the judgment appealed from.” Erom a judgment for plaintiff for $48.71 the defendants appeal.'
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      George Wallace, for appellants. Albert W. Seaman, for respondent.
   Pratt, J.

When the defendant in the original action recovered judgment in her favor, the warrant of attachment previously issued was thereby vacated. The refusal of the justice so to charge was error. As goods had been levied on under the attachment, a cause of action thereby arose on which nominal damages should have been awarded. The county judge was therefore right in reversing the judgment. Ho larger judgment than for nominal damages and costs could properly have been given, for the complaint does not allege that the property levied on was not afterwards returned, nor that damages had been incurred as counsel fees, and a verdict based on those items would have been erroneous; and there was no proof that any injury to credit had been caused by the attachment. The order appealed from will be affirmed; but, as the reasons given below are sustained but in part, and the controversy is tor an amount so trifling, it will be without costs. All concur.  