| N.Y. App. Div. | Nov 15, 1927
The respondent demurs to the petition and makes different motions including one for a bill of particulars. We. think he misconceives the nature of the proceeding. There are numerous and voluminous exhibits attached to the petition but exclusive of these the petition is comparatively brief. It appears therefrom that respondent instituted an action against Charles J. Herrick and others alleging in his complaint that they had entered into a conspiracy to bring about his indictment for perjury. No defendant in that action because of official position is immune from litigation nor exposure of any wrongful act. On the other hand, no attorney is justified in bringing an action against any person or group of persons without reasonable grounds therefor, particularly an action in which the complaint charges such reprehensible conduct as did the complaint in said action. The question of fact then is whether the respondent had reasonable grounds to institute said action for conspiracy. It is perfectly clear that on that issue no evidence is relevant except such as pertains specifically to the particular defendants in said action and only such evidence confined to them as tends to establish the conspiracy charged in the complaint in said action. Acts, omissions and statements of all others must be excluded unless connected with said defendants. Many of the allegations of the respondent’s answer in this proceeding are immaterial. It follows that the demurrer should be overruled and the motions denied. The facts which could justify the said action for conspiracy must reside peculiarly within the knowledge of the respondent and no bill of particulars is necessary. We think, however, that to clarify the situation and for the better information of the respondent the order of reference should be limited so as to require a determination of the only disputed question of fact which we deem important to be determined. Cochrane, P. J., Van Kirk, McCann, Davis and Whitmyer, JJ., concur. Demurrer overruled. All motions denied. Former order of reference vacated. The issue as to whether or not the respondent had reasonable grounds to institute the action against Charles J. Herrick and others is referred to Hon. Charles B. Wheeler, official referee, of Buffalo, N. Y., to take the evidence in respect to said issue and to report thereon, with his conclusions to this court.