
    Bessie H. Blynn, Resp’t, v. Treadwell D. Smith et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Attachment—Vacation—Judgment—Damages—Refusal to charge
    —When error.
    The defendant procured a warrant of attachment against the plaintiff’s property, which was duly executed. The case was brought on for trial and. judgment was rendered for the plaintiff herein, the defendant in the attachment suit. In an action for damages on account of the attachment. Held, that a refusal to charge that when the defendant in the original action recovered judgment in her favor, the warrant of attachment previously issued was vacated, is error.
    2. Same—Damages.
    Where goods had been levied on under the attachment, a cause of action thereby arose on which nominal damages should have been awarded.
    3. Same—When judgment for nominal damages proper.
    Where the complaint does not allege that the property levied on was not afterwards returned, nor .that damages had been incurred as counsel . fees, no larger judgment than for nominal damages was proper.
    Appeal from a judgment of the Queens county court reversing a judgment of a justice of the peace and a jury.
    This action arose in a justice’s court. The plaintiff sued, for damages on account of a warrant of attachment issued, by another justice, in which the defendant Treadwell D. Smith was plaintiff. The case was tried by a jury who ■ rendered a verdict for the defendants, and thereupon judgment was given with costs against the plaintiff. Appeal' was taken to the county court where the judgment was reversed and the plaintiff granted a new trial.
    The following is the opinion of the county court on the reversal of the judgment of the justice:
    
      “ 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, Treadwell 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 therein, 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 fifteen dollars was not returned to her, and that sbn 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. Goat 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.”
    
      George Wallace, for appl’ts; Albert W. Seaman, for resp’t.
   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.

No 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 érroneous. ■ 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 for an amount so trifling, it will be without costs.

All concur.  