
    Count W. Weeks, Appellant, v. Alice Wood Van Ness, Respondent.
    
      Action for abuse of process — obtaining a precept in summary proceedings for the non-payment of rent, in fact paid,—a judgment based on a failure .of proof ■ should not be on the merits.
    
    Where a landlord and tenant reside in different places, evidence that the landlord, after receiving a telegraphic order for the amount of the rent then due ' from the tenant, which order proved to have been sent by the tenant, although that fact did not appear on the face of the order itself or from any letter of advice sent therewith,, obtained a precept in summary proceedings against the tenant for non-payment of rent, but discontinued them upon the tenant interposing a plea of payment, will not entitle the tenant to maintain an action for abuse of process against the landlord, as it was legitimate for the landlord to use the precept for the purpose of clearing up a doubt which he might naturally entertain respecting the sender of the moneys which he had received.
    A judgment entered upon the dismissal of the complaint for failure of proof should not be upon the merits.
    Appeal by the plaintiff, Count W. Weeks, from a judgment of the County Court of Orange county in favor of the defendant, entered in the office of the clerk of the county of Orange on the 20th day of February, 1904, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said County Court.
    
      John W. Lyon [Joseph Rosch, Jr., with him on the brief], for the appellant.
    
      William A. Parshall, for the respondent.
   Hirschberg, P. J.:

This action purports to be for damages resulting from the abuse of legal process, but I can find no support for it in either, reason or authority, under the circumstances disclosed by the proof. The legal process which the plaintiff complains that the defendant abused was a precept issued by the special -county judge of Orange county on July 6, 1901, upon the • defendant’s petition in summary proceedings verified the same day, which precept required the plaintiff as the defendant’s tenant to show cause in the usual form on the tenth day of July following why possession of certain real estate in that county should not' be delivered to the defendant for non-payment of the rent. On the return day the plaintiff answered pleading payment, whereupon the proceedings were immediately withdrawn and discontinued. , The gist of the plaintiff’s claim is contained in the fact that he had sent the rent by express and that it was received and accepted the day before the defendant’s petition was presented and the precept issued. The facts show, however, that the learned county judge was entirely correct in dismissing, the complaint at the close of the plaintiff’s case upon the ground, as stated ■ by him, that there was no evidence that at the time the defendant instituted the summary proceedings she knew or had reason to believe that the rent had in fact been paid.

It appears that the premises in question were rented by the plaintiff from the defendant’s husband, then the owner of them, on the 1st of March, 1901, for the period of a year at an annual rental of $600 payable in equal quarterly installments, commencing July 1, 1901. The premises are in the town of Cornwall, Orange county, while the residence of the defendant and her husband is in the village of Port Jervis, in that county. Before the first installment of' rent came due the real estate had been transferred to the defendant by her husband. Meanwhile the plaintiff and the defendant’s husband had gotten into some dispute dr misunderstanding in reference to pending contracts, and the plaintiff resol ved that he would not pay the rent when it came due. On the 2d day of July, 1901, the defendant sent a messenger to the plaintiff, by whom he was informed of the transfer of the farm, and by whom he ivas served with, a written notice signed by the defendant as landlord demanding payment to her of the rent within three days. On the fourth day of July the plaintiff, wrote and mailed a letter to the defendant’s husband, saying, your indebtedness to me leaves nothing due you ; ” but, notwithstanding. this repudiation of indebtedness, he did on the following day obtain a telegraphic order from Wells, Fargo & Co.’s Express at the city of New York for $150, payable to the defendant’s husband, and on that day, July fifth, the sum of $150 was paid by the local agent of -Wells, Fargo & Co. at Port Jervis to the defendant’s husband, and his personal receipt taken for it.

At the time of the payment of this money to the defendant’s husband the Port Jervis agent of Wells, Fargo & Co. who delivered it to him had no knowledge of the name or identity of the person by whom it had been forwarded. All that he knew and all that the defendant knew was that some one in New York had sent $150 to her husband. The money had not been sent to her, and was not delivered to or received by her. The purpose of the remittance was not disclosed. It may be inferred, of course, that she fully believed that the money did come from the plaintiff, and that it was intended by him to be applied in discharge of the rent; and it may be further inferred that in order to verify that belief she instituted the summary proceedings, which form the basis of the plaintiff’s grievance. No other deduction more favorable to the plaintiff’s contention is fairly admissible. If this be so, she acted within her legal rights, and her conduct is free from the charge or even the suspicion of willfulness or malice, especially in view of the fact that she instantly discontinued the proceedings upon being apprised of the plaintiff’s plea of payment that he was indeed the anonymous forwarder of the money, and designed it to be applied in discharge of the rent. But her act in accepting the remittance as an extinguishment of the claim for rent was purely voluntary, and can in no manner be urged against her as evidence that her institution of the summary proceedings was in any sense an abuse of process.

It is, perhaps, needless to add that none of the many cases cited by the learned counsel for the appellant justifies the maintenance of this action. Dishaw v. Wadleigh (15 App. Div. 205) and Foy v. Barry (87 id. 291), on which special stress is laid, relate to circumstances very different in character from those herein disclosed. In the first case a subpoena was .used in the hope of -extorting payment from the victim as the alternative of the discomfort and expense incident to attendance at court at a great distance from his residence. In the second case a warrant of arrest was used to coerce the withdrawal of a claim then in litigation. In each case, as in all others to which attention has been directed, the process of the court had been abused by its willful misuse to the injury of the. plaintiff. Here, the use of the process was clearly legitimate, and such use resulted in the plaintiff’s receiving an actual benefit by giving him a credit to which he was not strictly entitled in law, and by clearing up a very natural doubt in connection with it, which had been created solely by the. obscurity and indirection of the methods employed by him in discharging his undoubted obligation.

The judgment entered, however, is-expressly stated to be upon the merits. 'The decision was in effect a nonsuit only, for failure of proof, and a judgment upon the merits was" improper. (Colyer v. Guilfoyle, 47 App. Div. 302; Peggo v. Dinan, 72 id. 434; Hackett v. Masterson, 88 id. 73.)

The judgment should"be modified by striking therefrom the words _ “ upon the merits,” and as modified affirmed, without costs- of this-■appeal to either party. . . . ..

Bartlett, Woodward and Miller, JJ., concurred ; Hooker, J.r not voting.. ,

, Judgment of the ¡County Court of Orange county modified by striking therefrom the words upon the. merits,” and, as modified affirmed, without, costs.  