By the Court.
Barrett, J.This action was not what would formerly have been denominated case, as the appellant claims, but trespass." It was false imprisonment for an arrest without lawful process, and not malicious prosecution. The material averment in the complaint, is, that the defendant “unlawfully seized and arrested the plaintiffthat of malice and want of probable cause may be treated as surplusage or as matter merely in aggravation of damages. The action itself was well brought. The attachment under which the present plaintiff was arrested, was not only irregular but" absolutely void. It was issued in violation of a stay of proceedings. The stay was “ until the further order of the court.” It did not cease upon the mere endorsement by the Judge of his decision of the motion, in connection with which it was granted, nor even upon the settlement of the form of the order, but contin-. ued in full force until the actual entry. Obtaining and issuing a non-bailable attachment, under such circumstances, was not only unlawful in itself, but sufficient to support a finding of malice, were such proof required.
The attachment was also irregular in having been issued upon the mere report of a referee, without proof by affidavit of the facts charged. An attachment, it is true, is primary pro*42cess, and may be granted in the first instance, but not without filing such proof as, if untrue, would subject the party asserting, to prosecution for perjury. The statute is imperative (3 R. S. 5th ed. 850, § 3). Copies of the affidavits must be served where the proceeding is by an order on the accused party to show cause why he should not be punished for his alleged misconduct (Id.; see also § 6). Where it is by attachment, they should either be served with the motion papers, or filed, if the attachment be issued in the first instance. This is not altered by the provisions of the Revised Statutes in relation to actions of account (3 R. S., 5th ed. 667, §§ 48-52). Section 52 provides that the referees shall report to the court any neglect or refusal to account or to produce books and papers, and that the court shall proceed thereon “ against such party for his disobedience in the manner prescribed in the thirteenth title of the eighth chapter of this Act.” The title and chapter referred to are those regulating proceedings as for contempt to enforce civil remedies and the manner of proceeding there prescribed, is, as we have seen, “ by due proof by affidavits of the facts charged.”
Again, the attachment, even if issued by competent jurisdictional authority, having been set aside for irregularity, the party issuing it became a trespasser db initio (Chapman v. Dyett, 11 Wend. 31; and see Kerr v. Mount, 28 N. Y. 659): The conclusion is irresistible that such was the case here. The appellant’s claim, that the attachment was set aside on the ground that the present “ plaintiff had reason to suppose, from the information of his counsel, that the order to stay proceedings remained in force and excused him from appearing before the referee,” is inconsistent with its absolute vacatwr, with costs, and that, too, on a distinct motion to so vacate, founded upon an affidavit alleging the very irregularities now complained of.
Nor can the defendant escape liability by his present attempt to throw the entire responsibility upon the attorneys.He was named in the writ as plaintiff and relator. Tet, instead of promptly repudiating their action, he appeared by counsel and resisted the motion to vacate. This was grima facie, a *43sufficient recognition and ratification of the act, especially when it is considered that he was not offered as a witness upon the trial, and did not attempt to testify to any such want of authority.
As to the damages, they were moderate, scarcely punitive, and should be sustained, upon the latter principle, even were all-the evidence of actual damage stricken from the case.
The judgment should be affirmed.