Forsyth v. John & James Edminston

11 How. Pr. 408 | The Superior Court of New York City | 1855

Bosworth, Justice.

The rules applicable to a writ of conspiracy, properly so called, are not applicable to actions on the case, in nature of a conspiracy. The latter are actions of tortt and are controlled by the general principles which regulate all actions of tort brought to recover damages. The damage sustained by the plaintiff is the ground of the action, and not the conspiracy. It may be brought against one person alone. If brought against several, all but one may be acquitted, and the plaintiff may have a verdict against one only.

When several conspire, and agree upon measures to be pursued to injure another, and such measures are taken in pursuance of, and in execution of such preconcerted arrangements, and damage results, all may be sued, and what one did in execution of the scheme may be alleged to be the act of all, and all will be charged with the-consequences.

But whe.re all directly participate in wrongful acts which produce damage, if they are acts which in judgment of law may be committed by several jointly, a recovery may be had in one action against.all, though no conspiracy be proved. 'And even when it is alleged that all the defendants conspired, if it appear that there was no conspiracy, and that what was done was the act of one only, a verdict may be had against him, and in favor of the others.

Prooí, in this case,-of the facts alleged, in relation to entering judgment against th.e plaintiff, and issuing executions against his property, and levying upon itj with the intent stated, and knowing the proceedings to be irregular, would entitle the plaintiff to recover, although he might fail to prove the other allegations of the complaint.

So, proof of entering upon the books of the commercial agency, the statements charged to have been there entered, and printing and circulating copies, would establish a cause of action.

So, proof of-the verbal representations, said to have been falsely and maliciously made, of the plaintiff as'a merchant, and of his standing and credit, with the consequences charged to have resulted, will establish a cause of action. Whether one would lie against the defendants jointly for this cause alone, without alleging and proving a conspiracy,- in pursuance of which the representations were made, it is now unnecessary to decide.

It is obvious, that the complaint states the substance of three several causes of action. 6

They should be separately stated, (Code, § 167,) and plainly numbered. (Rule 86.)

"Stating the causes of action separately is indispensable to appropriate and safe pleading on the part of the defendants. To one cause of action there may be no defence, and yet there may be a good one to each of the others. But those defences may be entirely different in their character. The complaint should be so framed that the appropriate answer to either cause of action may be separately stated in the answer-.

The rules applicable to an action on the case, in nature of a conspiracy, are clearly and fully stated in 1 Sand. R. 230, note 4; and in Tappan et al. agt. Powers, Davis, and Lawrence, (2 Hall, 277-296.) See Jones agt. Baker, (7 Cow. 445.)

The motion must be granted, with $10 costs to defendants, to abide the event of the action.