¶1The complaint is sufficient. There is no need.to aver malice or want of probable cause in suing for damages sustained by the levying of a void or irregular attachment. A. process being void, the party who sets it in motion and all who aid him are trespassers (Kerr v. Mount, 28 N. Y. 659; Wehle v. Butler, 61 N. Y. 245; Day v. Bach, 87 N. Y. 56; see also in this court, Wehle v. Haviland, 42 How. Pr. 399; 4 Daly 550).
¶2The action may be maintained if the process be irregular only, on proof that it has been set aside. The complaint avers that fact, and is sufficient in such an action. But the rule of damages may be different in such a case from the rule in case of an absolutely void attachment (Day v. Bach, above). The complaint here is not good as a pleading in an action of the latter class. The allegation that the attachment was “illegal, unauthorized and void,” is a statement not of fact but of a conclusion of law (Hammond v. Earle, 58 How. Pr. 437-8). The plaintiff will have to amend if he desires to prove on the trial that the attachment was void. But as a complaint in an action upon an attachment voidable for irregularity, the complaint is good because it avers that the attachment has been vacated.
¶3The demurrer is therefore overruled with costs. Leave to defendant to answer on payment of costs.
¶4Judgment accordingly.