244 A.D. 694 | N.Y. App. Div. | 1935
We are Of the opinion that the complaint herein is insufficient, and that the Special Term should have granted the motion of the defendants for judgment on the pleadings.
Plaintiff séeks to recover of the defendants the sum of $25,000 damages which plaintiff alleges he sustained as the result of a conspiracy between the defendants whereby the plaintiff alleges he was excluded from participation in the management and control of the affairs and business of a corporation known as Stern & Gut-man, Inc. In his complaint the plaintiff alleges that prior to April 3, 1933, he was associated with the defendants Gutman and Morton F. Stern as stockholders and directors in said corporation, and that the plaintiff was and still is the owner of 215 shares of the preferred non-voting stock and 100 Shares of class B common non-voting stock of the said corporation; that prior to said date the relationship between the plaintiff , and the defendants Gutman and Morton F. Stern was friendly. Plaintiff then alleges that on or about April 3, 1933, he refused to accede to certain demands and requests made by the defendants Gutman and Morton F. Stern,
Conspiracy of itself does not constitute a cause of action. Before there can be any recovery had in an action based upon conspiracy, it must appear that the plaintiff has been damaged. The damages suffered constitute the cause of action, and not the conspiracy. As was said in the case of Rhodes v. Ocean Accident & Guarantee Corp., Ltd. (235 App. Div. 340, 341): “ Conspiracy to commit an actionable wrong is not in itself a cause of action. To sustain the counterclaim we must be able to find in the answer allegations of wrongful acts which have been committed and which have resulted in injury to the person bringing the action. The liability is for damages in the commission of a wrongful act, or of a legal act by wrongful means, and not for the agreement to commit it.” (Italics are the writer’s.)
In Momand v. Landers (174 App. Div. 227) the Appellate Division wrote as follows: “ The chief grievance of the plaintiff as indicated in his complaint seems to be that he was excluded by the two defendant directors from what he deemed to be a proper share in the management of the corporation, and damage is alleged in a general way as resulting from his exclusion. * * * . Assuming for the argument that the defendants did wrongfully attempt to remove the plaintiff and did wrongfully exclude him from participating in the management of the corporation, there is no practicable way of measuring any damage which could flow from such acts.” (Italics are the writer’s.)
The rule as to the method of alleging damage in a conspiracy action is correctly set forth in 12 Corpus Juris, 631, as follows:
“ § 218. Method of alleging damages. In alleging damage it is not sufficient simply to state that damage did in fact result; but the facts should be alleged from which the court can see, if the facts are true, that damage would naturally or possibly result from the act stated,” (Italics are the writer’s.)
From the authorities cited it clearly appears that the plaintiff has failed to state in his complaint that he suffered any damage by reason of the alleged wrongful acts of the defendants. All that appears from the complaint is that by reason of such acts of the
We are, therefore, of the opinion that the complaint fails to state facts sufficient to constitute a cause of action, and that the order denying the defendants’ motion for a judgment on the pleadings should be reversed, with twenty dollars costs and disbursements, and the defendants’ motion granted, with ten dollars costs.
Martin, P. J., Townley, Glennon and Untermyer, JJ., concur.
Order reversed, with twenty dollars costs and disbursements, and motion granted, with ten dollars costs.