
    (36 Hun, 316.)
    McLAUGHRY v. PORTER et al.
    (Supreme Court, General Term, Fourth Department.
    May 4, 1895.)
    1. Abuse of Process—Who Liable—Question for Jury.
    In an action to recover damages for personal injuries inflicted by executing a warrant of dispossession issued on the petition of defendant M., and executed by the other defendants, there was evidence that M. was near the house when the warrant was executed; that he was in consultation with the officer and with two physicians who were there at M.’s request, and took an active part in the removal; that the attorney who obtained the warrant was present, and took an active part in the matter; that M.’s orders were to put plaintiff into the road; and that he afterwards furnished the officer the money with which he paid his assistants and the physicians. Hele?, that it was a question for the jury whether M. participated in the removal of the plaintiff.
    2. Same—Calling Posse—Good Faith.
    In such case it was error to charge that the officer who executed the warrant had no right to take a posse with him unless he apprehended resistance, and that, if he took the posse there for another purpose, they were all trespassers, there being evidence that the posse was summoned in good faith, and were all necessary.
    Appeal from circuit court, Delaware county.
    Action by Violet A. McLaughry, an infant, by her guardian, against William C. Porter and others, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, defendants appeal.
    Reversed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Edward O’Connor and F. R. Gilbert, for appellants.
    Walter Scott, for respondent.
   MERWIN, J.

The exceptions only are before us upon this appeal. The action is brought to recover damages for personal injuries sustained, as the plaintiff claims, by her wrongful removal from the house occupied by her parents, upon the execution by the defendant Porter, a deputy sheriff, and his assistants, of a warrant of dispossession, issued by a justice of the peace, upon the petition of the defendant McDonald, after a foreclosure by advertisement of a mortgage made by the father of plaintiff, David H. Mc-Laughry, who was then the owner of the premises. The plaintiff claims that she was at the time of her removal sick, and, in substance, that the officer and those who assisted him were guilty of an abuse of the process, in that they used unnecessary and unreasonable force in her removal, and that the assistants or posse which the officer had there were not summoned in good faith or for any legitimate purpose, but for the purpose of intimidation and violence. It is not alleged in the complaint that defendant McDonald was personally engaged in the removal, but it is alleged that the wrongful acts of the other defendants were done by and through his aid, advice, procurement, and instigation. It appears that after the removal, and before the commencement of this action, the final order of the justice of the peace under which the defendants acted was on appeal to the county court reversed. The court, however, charged that the officer and those who acted under him were protected, unless there was an abuse of the process.

At the close of the evidence, the counsel for the defendant McDonald moved that as to him the complaint be dismissed, on the ground that sufficient facts had not been proven to establish a cause of action against him. This motion was denied, and exception taken. The plaintiff claimed that there was sufficient evidence to make it a question for the jury to say whether or not McDonald aided and abetted the other defendant in their improper conduct. There is evidence tending to show that McDonald was there on the premises, and near the house, and in consultation with the officer, and with the two physicians that were there at his (McDonald’s) request, and took an active part in the removal; that the attorney who represented him before the justice in obtaining the warrant was present, and took an active part in the matter; that his (McDonald’s) orders were to put the plain tiff into the road; that he afterwards furnished to the officer the money with which he paid his assistants and the physicians. We are inclined to the opinion that the question as to McDonald’s participation in the matter was for the jury, and that the motion to dismiss as to him was properly denied.

The counsel for the defendant McDonald asked the court to charge that:

“If the jury find that the only connection defendant McDonald had with the eviction of this plaintiff was the presenting of the petition and commencing of the summary proceedings before the magistrate, he is not liable in this action.”

This was properly refused, for the reason that, on the undisputed evidence, McDonald was in fact connected with the eviction beyond what was stated in the request.

In the charge of the court there occurs the following:

“If he [the officer] went there with a posse selected by himself, not for the purpose of overcoming any resistance which he apprehended, or which was present, or which was determined to be present, then, gentlemen, he was there without lawful authority with his assistants, and he and his assistants, every one of them, became trespassers from the beginning, and cannot be protected in the proceedings which were enacted and which followed.”

Exception was duly taken. The charge, in effect, was that the officer had no right to take there the assistants which he did, unless he apprehended resistance, and that, if he took them there for any other purpose, they were all trespassers. It was error to charge this as matter of law, inasmuch as the defendants claimed, and gave evidence tending to show, that the assistants were in good faith summoned to aid in, and were all necessary for, the proper removal of a large amount of personal property, such as lumber and hay, which the McLaughrys had on the premises. This aspect of the case the defendants were entitled to have the jury ■consider, and the court had no right to withdraw it from their consideration. It may be claimed that, taking the charge as a whole, the error was cured. In this view we have examined the charge, and are of the opinion that the error was not cured, although the attention of the court was expressly called to it by the exception taken at the close. The jury were liable to have been misled, and we cannot say that they were not. The evidence was very conflicting, and the case was a peculiar one. We think that the exception was a good one, and that it inures to the benefit of McDonald, as well as to the other appellants. Under the allegations of the complaint, McDonald is only liable on the basis that the officer and his assistants improperly did their duty, and committed a wrong on the plaintiff. It follows that, by reason of the error suggested, a new trial must be granted.

Judgment and order reversed, on the exceptions, and a new trial ordered; costs to abide the event. All concur.  