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Ash v. Cohn

Decided: September 22, 1937.


On appeal from the Supreme Court, Passaic Circuit.

For the appellant, Joseph T. Lieblich.

For the respondents, Archibald Krieger.


The opinion of the court was delivered by

PERSKIE, J. Does the amended complaint set forth a legal cause of action? The learned trial judge concluded that it did not and accordingly entered a judgment of nonsuit in favor of all defendants. Hence plaintiff appeals.

In light of the disposition thus made of the complaint, an analysis thereof is necessary. The complaint sounds in tort; it contains two counts. Plaintiff's theory of defendants' liability under the first count is that the latter had maliciously abused the process of the court; and his theory of the second count is that defendants were guilty of unlawful conspiracy.

In support of these theories the allegations of the complaint, stripped of all technique, disclose substantially the following situation. The instant suit is the outgrowth of a former suit which Brown and Morris, trading as B. & M. Garage, by their attorneys, Cohn and Kohlreiter, had instituted against Robert F. Ash, in the First District Court of the city of Paterson, New Jersey, on a charge of malicious prosecution. That suit resulted in a judgment of $500 in favor of the plaintiffs. Defendant appealed. Abram Hoffman and he executed the appeal bond. Defendant apparently failed diligently to prosecute his appeal. Thereupon, plaintiffs did not sue upon the appeal bond but, it is alleged, in order to lay a foundation for the issuance of a body execution, caused execution to be issued, and maliciously directed Ryan, who is the sergeant-at-arms of the District Court wherein [119 NJL Page 56] the judgment had been recovered, to return the execution unsatisfied. This Ryan did, notwithstanding that plaintiffs, their attorneys, and he allegedly knew that defendant was a freeholder, and the owner of goods and chattels of the value of which was in excess of the amount of the judgment recovered against him. Thereafter, it is further alleged, plaintiffs' attorneys prepared a false affidavit reciting, among other things, that defendant was not a freeholder, and caused Goodman Singer, a law clerk in their offices, who was aware of its falsity, to execute that affidavit; that the planned objective was, by means of the execution against the body of the defendant, swiftly to enforce the satisfaction of the execution, which they had caused to be returned unsatisfied, without recourse to the regular procedure of either making a levy upon and sale of defendant's goods and chattels, or without suing upon the appeal bond. The complaint proceeds to aver that in furtherance of that conspired plan the false affidavit was presented to the District Court judge and that the latter, relying upon the truthfulness of the facts contained therein, ordered the issuance of a second execution commanding satisfaction of the judgment and, for want of sufficient goods and chattels, the taking of the body of defendant, and that in the presence of plaintiffs' attorneys, in disobedience of and in direct defiance to commands of the order requiring a levy upon and unsuccessful sale of defendant's goods and chattels prior to the seizure and incarceration of defendant's body, and allegedly with full knowledge of the planned wickedness, Ryan caused defendant's arrest and removal to the county jail where he remained for twenty-four hours; that such arrest and incarceration were on a Saturday when all who participated in the scheme well knew that the District Court judge was out of the city spending the week-end at some New Jersey seashore resort and thus unavailable to authorize defendant's release. We were told on the argument of this cause that plaintiffs' scheme worked. Satisfaction of the execution was thus coercively effected. Defendant in the District Court suit then instituted this suit against plaintiffs in the district court suit (Brown and Morris, trading as B. & M.

Garage, their attorneys Cohn & Kohlreiter, the law clerk of the latter, Goodman Singer, and the sergeant-at-arms of the District Court, John A. Ryan, for having maliciously abused the process of the court and for having unlawfully conspired to deprive him of his liberty.

As already observed, the trial judge concluded that neither count set forth a cause of action. That conclusion was made to rest upon the premise that the allegations of both counts spell out the tort of a malicious use of process rather than that of an abuse of legal process; in other words, that the allegations set out the tort of malicious prosecution, and since there is no allegation in either count of a favorable termination of the proceedings, i.e., that the body execution had not been set aside by a justice of the Supreme Court in the manner provided by section 181 of the District Court act, both counts were fatally defective. It is the propriety of the judgment of nonsuit based on that premise that is now challenged.

First: Let it be observed, in limine, that we choose to rest the decision of the question presented not upon the premise that the trial judge erroneously concluded that the allegations of the complaint set forth a tort denominated under the common law as the malicious use of process, i.e., malicious prosecution, but rather upon the premise that the trial judge erroneously concluded that the allegations of the complaint did not set forth a tort which, under the common law, is denominated as the abuse of legal process. For, "the facts of a case may at once justify an action for malicious prosecution or for the abuse of process. In other words, an abuse of process may occur in the course of a prosecution which has been malicious and wrongful throughout. The following cases so indicate: Gonsouland v. Rosomano (1910), 100 C.C.A. 97; 176 Fed. Rep. 481; McGann v. Allen (1926), 105 Conn. 177; 134 A. 810; Brantley v. Rhodes-Haverty Furniture Co. (1908), 131 Ga. 276; 62 S.E. Rep. 222; Dean v. Kochendorfer (1924), 237 N.Y. 384; 143 N.E. Rep. 229; Wright v. Harris (1912), 160 N.C. 542; 76 S.E. Rep. 489." See annotation (action for

abuse of process), 80 A.L.R. 580, 581, 582. The two actions are, however, distinguishable. An action for malicious abuse of process is distinguished from an action for malicious use of process in that the action for abuse of process lies for the improper, unwarranted and perverted use of process after it has been issued while that for the malicious use of it lies for causing process to issue maliciously and without reasonable or probable cause. Grainger v. Hill, 4 Bing. N.C. 212. Thus it is said, in substance, that the distinction between malicious use and malicious abuse of process is that the malicious use is the employment of process for its ostensible purpose, although without reasonable or probable cause, whereas the malicious abuse is the employment of a process in a manner not contemplated by law. Another fundamental distinction is that in the case of malicious use it is necessary to allege ...

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