English v. Schwartz , 278 A.D. 756 ( 1951 )

The allegations of the complaint do not establish the existence of any actionable claim against defendants. Viewed as an action to recover damages for abuse of process the complaint is insufficient in that the essential allegations for such an action are lacking. There is nothing in the complaint to show that the second replevin action, which was properly instituted, was perverted in order to attain an unlawful result. It does appear that the process was used for the purpose intended. Furthermore, the prior judgment operates here as an estoppel. Order unanimously reversed, with $20 costs and disbursements to the appellants, and the motion to dismiss the complaint under rule 106 of the Rules of Civil Practice granted, with costs. Settle order on notice. Present — Peek, P. J., Glennon, Dore, Cohn and Callahan, JJ. [See ante, p. 754.]