Munzer v. Blaisdell

183 Misc. 777 | N.Y. Sup. Ct. | 1944

Benvenga, J.

Motion by defendant Carp to dismiss fifth amended complaint or, in the alternative, to strike out certain portions thereof. As has been pointed out, plaintiff has a cause of action based upon a violation of section 84 of the Mental Hygiene Law. (See Munzer v. Blaisdell, 183 Misc. 773, decided herewith.) True, the statute imposes a duty upon directors, superintendents and other persons in charge of institutions for the mentally ill. Nevertheless, if Carp and Blaisdell were parties to a conspiracy to divulge the contents of plaintiff’s case record, in violation of section 84 as plaintiff contends the evidence will show, then the acts and conduct of Blaisdell, in furtherance of the purpose "and object of the conspiracy, are competent against Carp, even though the complaint contains no allegation of conspiracy (Brackett v. Griswold, 112 N. Y. 454, 466, 467; Green v. Davies, 182 N. Y. 499, 504, 505; Burgess Bros. Co., Inc., v. Stewart, 112 Misc. 347, 359, affd. 194 App. Div. 913), and even though Carp could not himself commit the wrong. (People v. McKane, 143 N. Y. 455, 463, 464; Green v. Davies, supra, ,pp. 505, 506; Lonsdale v. Speyer, 249 App. Div. 133, 141.) Under elementary principles, each conspirator would be jointly and severally liable for all damage resulting from the conspiracy. (Lonsdale v. Speyer, supra; 15 C. J. S., Conspiracy, § 18.)

Motion to dismiss granted to the extent of dismissing the second, third and fourth causes of action and striking from the first cause of action the portions indicated in the companion case of Munzer v. Blaisdell (supra, decided herewith) with leave to serve a sixth amended complaint in accordance herewith, within twenty days after the service of a copy of this order, with notice of entry.