216 A.D. 634 | N.Y. App. Div. | 1926
The defendant has moved to dismiss the plaintiffs’ complaint on the ground that it failed to state facts sufficient to constitute a cause of action in favor of either plaintiff, or in the alternative to require plaintiff to serve an amended complaint separately stating and numbering the causes of action in favor of each plaintiff. The motion has been denied with leave to defendant to serve an answer within twenty days from service of said order upon defendant’s attorney.
The complaint discloses these facts: The corporation plaintiff was the successful bidder for the construction of certain additions and alterations to a public school in the city of Buffalo, and on May 15, 1924, the board of education of the city of Buffalo entered into a written contract with the corporation plaintiff for the performance of the work, which was thereupon begun. The individ
On the 6th day of June, 1924, the defendant applied to a justice of the Supreme Court for a temporary injunction in an action in which the present defendant was the plaintiff, and in which the defendant was designated as “ Louis J. Sigl.” The temporary injunction was granted, and according to the complaint, the order enjoined and restrained the plaintiffs, and the board of education of the city of Buffalo, and the individual members thereof constituting the said board of education, and its and their officers, agents, servants, employees and successors from “ permitting or allowing said defendant Louis J. Sigl [i. e., defendant in the action for the injunction], his agents, servants, employees, and anyone acting for, through or under him or them from entering in or upon the premises of said Elementary School No. 63, or the Additions or Alterations thereof; permitting or allowing said defendant Sigl [i. e., defendant in the action for the injunction], his agents, servants, employees, and anyone acting for, through or under him or them, from furnishing any material or performing any work under or pursuant to the aforesaid contract made by said Board with said Sigl for said heating and ventilating of said Addition and Alteration to said School; paying or certifying, approving or recommending for payment, any money, or anything, to said Sigl, his agents, assigns or anyone else, for or on account of any material furnished, or to be furnished, or work or labor performed or to be performed under or pursuant to the aforesaid contract; and pending the hearing and final determination of this action that the aforementioned defendants Board of Education of the City of Buffalo, and Fuhrmann, Hill, Felton, Roblin and Zimmerman [the individual members of the board of education] and their officers, agents, servants, employees and successors be and each of them is enjoined and restrained as aforesaid.”
The complaint in the action for the injunction contained the allegation that the present defendant had been the lowest bidder for the work covered by the contract which had been in fact awarded to the corporation plaintiff. This allegation was false and was known to defendant to be false when made and was made solely for the purpose of securing the injunction. The statement was made maliciously and with intent to injure the plaintiffs here, and the defendant at the time he obtained the injunction well knew that he had no just or probable cause of action against these plaintiffs or the board of education of the city of Buffalo. The injunction order was served on Louis J. Sigl on the sixth day of June, and no
After hearing all parties interested, including the present plaintiffs and defendant, the court vacated the injunction previously granted, and rendered decision in favor of these plaintiffs on the motion for the continuance of the injunction, and thereafter, and shortly prior to July 26, 1924, the action for an injunction was discontinued upon the stipulation of “ all the parties to said injunction proceeding.”
The allegations of damages to the plaintiffs relate to consequences of enforced delay in performing the work during the continuance of the injunction and to expense for counsel fees growing out of the issuance of the injunction.
It is well settled that an action will lie for the malicious prosecution of a civil suit without probable cause, where the person or property of the defendant in such civil suit is interfered with, as in the case of an arrest, an attachment or an injunction. (Burt v. Smith, 181 N. Y. 1.)
In actions of this character arising out of criminal prosecutions, a final determination on the merits favorable to the plaintiff, or at least a termination without an adjudication against the plaintiff in some way chargeable to the complainant, is a necessary condition precedent to the maintenance of the action. (Halberstadt v. N. Y. Life Ins. Co., 194 N. Y. 1.) In cases arising out of civil actions the rule is similar. The civil action must be at an end. It must not have terminated unfavorably to the plaintiff. Its termination must not have been brought about by compromise or inducement offered by the plaintiff. (McNair v. Maijgren, 181 App. Div. 272; Smith v. Smith, 26 Hun, 573; Cardival v. Smith, 109 Mass. 158; Burhans v. Sanford, 19 Wend. 417; 2 L. R. A. [N. S.] 947, note.) Although in the present case the plaintiff consented to the discontinuance, it does not appear that he induced it, or that a compromise was effected. The temporary injunction was first vacated after a full hearing, and a further injunction denied. There followed a discontinuance by stipulation. Such voluntary discontinuance was prima facie an acquiescence by the.plaintiff in the previous adverse decision on the temporary
As to the individual plaintiff, the complaint fails to disclose that any contract or property of his was interfered with by the injunction. The school contract was let to Louis J. Sigl, Inc., of which he was the largest stockholder. His ownership of ninety-eight per cent of its stock, however, gave him no direct or derivative right to sue. (Niles v. N. Y. C. & H. R. R. R. Co., 176 N. Y. 119; People v. American Bell Telephone Co., 117 id. 241; Brock v. Poor, 216 id. 387.) As a stockholder the individual plaintiff will ultimately share in any recovery of the plaintiff corporation.
The complaint alleges that the plaintiffs were damaged by “ loss of materials owned by the plaintiffs and stolen or destroyed from and on ” the school premises during the pendency of the injunction; by loss of materials abandoned to the contractor; by loss occasioned by employment of extra labor to complete the school contract on time; by loss occasioned by the necessity to make hurried purchases to complete the contract on time; by loss caused plaintiff corporation by idleness of its plant, and by loss in expenses for counsel. Except as it might be inferred from these statements that the individual plaintiff himself owned some interest in the material, plant or property to be used on the school, the complaint is silent as to any such interest, and taking the pleading as a whole, it fairly appears that all the material, plant and property belonged to the corporation to the exclusion of the individual plaintiff. The loose phrases in the allegations of damages should be construed as relating to rights of the individual plaintiff as a stockholder of the corporation. As to the individual plaintiff, therefore, no cause of action is alleged. (Paul v. Fargo, 84 App. Div. 9; Breckheimer v. Loew, 168 id. 956; Willard v. Holmes, Booth & Haydens, 142 N. Y. 492; Burt v. Smith, supra.)
The situation is different as to the corporation plaintiff. Malice, want of probable cause, termination of action and damages are adequately pleaded. It is urged by the appellant that the order ^s directed only to the board of education, its members, agents and employees, and restrains them alone from permitting the doing of work upon the contract. Such order, however, necessarily prevented the contractor as well from proceeding to perform the contract. We must look to the result of the restraining order, rather than to its letter. Thus considered the contractor as well as the board of education was effectively restrained. (Landers v. Fisher, 24 Hun, 648; Witbeck v. Niagara, L. & O. P. Co., 214 App. Div. 371.)
It is also urged that the corporation plaintiff was not a party to the prior action. Whatever the condition of the litigation in that respect .may have been before the hearing of the motion to continue the injunction on June 16, 1924, an amendment was then allowed so as to include the corporation plaintiff as a party to the pending injunction proceeding. The parties^ including the present defendant, at that time recognized that it was the corporation against whom the present defendant was then proceeding, and thereupon treated the action as having been so intended. We cannot give countenance to an argument based upon the previous condition of the suit in view of the amendment by stipulation of all parties interested.
The complaint, therefore, must be deemed sufficient as to the corporation plaintiff.
The order should be reversed so far as it denied the motion to dismiss the complaint as to the individual plaintiff, and the motion should be granted as to him, and otherwise the order should be affirmed, without costs.
Hubbs, P. J., Crouch and Taylor, JJ., concur; Davis, J., dissents in part and votes for affirmance.
Order reversed as to individual plaintiff and motion granted as to him, and otherwise the order is affirmed, without costs of this appeal to either party.