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SYDNEY M. SIEGEL v. NORTHERN BOULEVARD & 80TH STREET CORP. ET AL. (12/19/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1968.NY.43995 <http://www.versuslaw.com>; 295 N.Y.S.2d 804; 31 A.D.2d 182 December 19, 1968 SYDNEY M. SIEGEL, RESPONDENT,v.NORTHERN BOULEVARD & 80TH STREET CORP. ET AL., APPELLANTS Appeal from an order of the Supreme Court at Special Term (Frederick Backer, J.), entered July 7, 1965 in New York County, which granted plaintiff's motion for summary judgment and from the judgment entered thereon. Nathan Marcus of counsel (Marcus & Janoff, attorneys), for appellants. Clarence S. Barasch for respondent. Capozzoli, J. Stevens and Steuer, JJ., concur with Capozzoli, J.; Eager, J., dissents in opinion in which Botein, P. J., concurs. Author: Capozzoli


Appeal from an order of the Supreme Court at Special Term (Frederick Backer, J.), entered July 7, 1965 in New York County, which granted plaintiff's motion for summary judgment and from the judgment entered thereon.

Capozzoli, J. Stevens and Steuer, JJ., concur with Capozzoli, J.; Eager, J., dissents in opinion in which Botein, P. J., concurs.

Author: Capozzoli

 This action was brought to recover damages resulting from warrants of attachment which were obtained by defendants-appellants and which were later vacated by this court on the ground that they were not authorized by statute. (Northern Blvd. & 80th St. Corp. v. Siegel, 16 A.D.2d 523.) The plaintiff contends that he is not limited by the amount specified in the undertaking. His position is that this is an action in the nature of trespass and that the defendant is obligated to pay whatever damages are found to have been sustained by the plaintiff without reference to the undertaking.

Attachment is a provisional remedy having as its object securing a debt by preliminary levy upon property of the debtor to conserve it for eventual execution. It is strictly a creature of statute and, therefore, because of its harsh nature and, it being in derogation of the common law, the courts have strictly construed the statute creating it in favor of those against whom it may be employed. (Penoyar v. Kelsey, 150 N. Y. 77.) In the last-cited case the court quoted the language of a text writer who criticized this remedy and, at page 80 of its opinion, set forth the language as follows: "As said by a recent writer, 'it amounts to the involuntary dispossession of the owner prior to any adjudication to determine the rights of the parties. It violates every principle of proprietary right held sacred by the common law. It is, to some extent, equivalent to execution in advance of trial and judgment. Property is taken, under legal process, at the instance of one without even a claim of title from the possession of another whose title is unquestioned; and though the mere taking does not work any change in the ownership of the property, it seriously affects some of the most important incidents of that ownership, and may even be the means of thwarting the owner in his endeavors to meet the just demands against him'".

In the case of Northern Blvd. & 80th St. Corp. v. Siegel (supra, p. 524) of the opinion, we said: "attachment being an extraordinary remedy, statutes providing therefor should be strictly construed in favor of the party whose property is sought to be attached". (Citing Penoyar v. Kelsey, supra.)

Where the process is irregular, unauthorized, or void, a levy made by the officer renders the party suing out the attachment a trespasser, since, under such circumstances, the officer becomes the agent of such party. Where attachment is irregular or voidable, it will, nevertheless, protect the attachment plaintiff, acting under it, until it is set aside, but after it has been set aside, it affords no protection to the party at whose instance it was issued, and he becomes a trespasser ab initio and thereby liable for damages resulting therefrom. (7 C. J. S., Attachment, ยงยง 503-504.)

A cause of action on an attachment bond is simply an action in contract which is governed by its language and by the statute under which it is given. On the other hand, an action based upon the theory that the warrant of attachment was declared void ab initio for an irregularity, subsequently discovered after its issuance, is an action based on tort. The damages recoverable under the tort action cannot be limited by the undertaking.

A void writ furnishes no justification for acts done under it and it is not necessary that it should be set aside before bringing an action. If a writ is irregular only, no action lies until it has been set aside, but when set aside, it ceases to be a protection for acts done under it. (Day v. Bach, 87 N. Y. 56; Fischer v. Langbein, 103 N. Y. 84.)

In Day v. Bach (supra, pp. 60-61) the court said: "There can be no doubt of the general principle, that void or irregular process, furnishes no justification to the party for acts done under it, with this limitation: that if the process is irregular only, so that it is merely voidable, and not void, it must be set aside or vacated before trespass can be brought. * * * Lord Chief Justice DeGrey said: 'There is a great difference between erroneous process and irregular (that is to say void) process, the first stands valid and good until it be reversed; the latter is an absolute nullity from the beginning; the party may justify under the first until it be reversed; but he cannot justify under the latter, because it was his own fault that it was irregular and void at first.' * * * "The authorities seem to establish these propositions: First, that a void writ or process, furnishes no justification to a party, and he is liable to an action for what has been done under it at any time, and it is not necessary that it should be set aside before bringing the action. * * * Second, if the writ is irregular only, and not absolutely void * * * no action lies until it has been set aside; but when set aside, it ceases to be a protection for acts done under it while in force. * * * Third, if the process was regularly issued, in a case where the court had jurisdiction, the party may justify what has been done under it, after it has been set aside for error in the judgment or proceeding".

An examination of the facts in the Day case discloses that the court had jurisdiction of the action, and the affidavits before it presented a case for the exercise by the court of its judgment upon the facts presented. There was no question of irregularity. The court's own language (pp. 61-62) of the opinion, clearly indicates the true question before it: "The court had jurisdiction of the action, and the affidavits presented a case for the exercise by the court of its judgment upon the facts presented. There was no irregularity. The attachment was set aside by the General Term, on the ground that the affidavits on which the motion to vacate was made, answered the charges in the affidavits on which the attachment issued. The court corrected what it deemed the erroneous conclusion of the Special Term, upon the controverted facts. It was, therefore, a reversal for error and the setting aside of the attachment on this ground, did not deprive the defendants of their justification."

It must be noted that the case of Northern Blvd. etc. v. Siegel (16 A.D.2d 523, supra) which is the basis of the action now before this court, presented a situation where the court made it clear that, the reason for vacating the warrant of attachment was because the action was not one in which attachment was authorized under the statute then in force, and it therefore vacated the warrant. Once the vacatur occurred then it spoke as of the time of the issuance of the warrant and all done pursuant to same was illegal.

In Fischer v. Langbein (103 N. Y. 84, 90, supra) the court said: "Process, however, that a court has general jurisdiction to award, but which is irregular by reason of the non-performance by the party procuring it, of some preliminary requisite, or the existence of some fact not disclosed in his application therefor, must be regularly vacated or annulled by an order of the court, before an action can be maintained for damages occasioned by its enforcement. (Day v. Bach, 87 N. Y. 56.) In such cases the process is considered the act of the party and not that of the court, and he is, therefore, made liable for the consequences of his act. * * *

"Irregular process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular case by reason of the existence or non-existence of some fact or circumstance rendering it improper in such a case".

At page 94 the court also said: "Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises, and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void and afford no ...


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