22 N.Y.S. 133 | N.Y. Sup. Ct. | 1893
The complaint charges that the defendants willfully and maliciously conspired together to injure the reputation and business credit of the plaintiff by charging and circulating among the plaintiff’s acquaintances and customers that the plaintiff had cheated and defrauded his former partner, David Wyman, the defendant, and that defendants publicly made such charges. The defendants answered jointly, interposing simply a general denial. On the trial, witnesses called in behalf of plaintiff testified that the defendant Wyman said that the plaintiff was a fraud, and had robbed him. No evidence was given that Keller had uttered slanders against the plaintiff, and, at the close of the plaintiff’s case, the complaint was dismissed as against him, with costs, but the court refused to dismiss it as to Wyman. The defendant testified that he never made the statements. Whether he did or not was submitted to the jury, and they found for the plaintiff, and assessed his damages at $250. The defendant Wyman moved, at the close of the plaintiff’s case, and at the close of the evidence, that the complaint be dismissed as to him, on the ground that no conspiracy was proved to have been enteredinto between the defendants. The motion was denied, and the defendant excepted. The defendant insists on this appeal that in such an action a verdict cannot be recovered against one of the defendants.
At common law an action to recover damages for a conspiracy could be maintained only in two cases: (1) A conspiracy to indict for treason; and (2) a conspiracy to indict for a capital felony. Savile v. Roberts, 1 Ld. Raym. 374-379; Jones v. Baker, 7 Cow. 445; Verplanck v. Van Buren, 76 N. Y. 247; 2 Selw. N. P. (13th Ed.) 1004. In the'
“This action seems to have been tried upon the theory that a verdict for the plaintiffs might be sustained against one defendant, while another defendant could have a verdict in his favor, and this theory seems to have led to various serious errors in the admission of evidence, which call for a reversal of the judgment. We do not understand that in an action of this character, being an action for conspiracy, and nothing else, a verdict can be rendered against one defendant in favor of the plaintiff, and another defendant succeed. ”
That case, so far as can be ascertained by the report, arose out of the following facts: Kendall Bros., a firm, purchased goods of the plaintiff, for which they failed to pay. The firm was indebted to Taylor. The action was brought against him and the members of the firm, in which it was alleged—
“That it was then and there agreed between them [the defendants] that they [Kendall Bros.] should bu)r goods upon credit from such persons as could be induced to sell them, which said firm could not and did not intend to pay for, and that the firm should sell for cash or promissory notes a part of the goods thus fraudulently obtained, and procure the promissory notes to be discounted, and with the proceeds thereof, and with the cash to be realized from said sale, and with the remaining portion of the merchandise to be purchased, as aforesaid, should pay in full their indebtedness to Taylor. ”
It was also alleged that it was a part of the agreement that Taylor should sustain the credit of the firm, and enable it to make purchases on credit; but by what means he agreed to sustain its credit, or what he did for that purpose, is not disclosed by the report of the case. From the reporter’s note it seems that a verdict was rendered in favor of the Kendalls, and against Taylor, who appealed. It being found that Kendall Bros, had not defrauded the plaintiff in the purchase of the goods, Taylor could not be held liable for participating in a fraud which
