261 A.D. 979 | N.Y. App. Div. | 1941
Action to recover for damages caused by a conspiracy to impair or destroy plaintiff’s lien on real property. Judgment entered on a verdict directed in favor of plaintiff reversed on the law and the facts, and a new trial granted as to all defendants except defendant Gussie Stem, costs to abide the event. As to defendant Gussie Stem, the judgment is reversed on the law, with costs, and the complaint dismissed on the law, with costs. There is abundant proof in the record from which it may be found that for the purpose of destroying or impairing plaintiff’s lien on the judgment debtor’s real property a fraudulent conspiracy was entered into and executed to purchase and foreclose the mortgages on the realty. The motive behind a conspiracy does not make it actionable if in furtherance of the conspiracy only legal acts were performed. (Beardsley v. Kilmer, 236 N. Y. 80; Dorff v. Bornstein, 277 id. 236.) It is otherwise when in furtherance of the conspiracy a fraud is perpetrated upon the court that granted the judgment of foreclosure. If, as alleged in the complaint, appellants, or some of them, intended to lead the court into believing that the plaintiff had been served in the foreclosure action, when such was not the fact, an actionable tort was committed. The jury should have been permitted to pass on that issue. It is no bar to the maintenance of the action that plaintiff could move in the foreclosure action to re-establish his lien. As to appellant Gussie Stern, there is no evidence that she had knowledge of or participated in the conspiracy. Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.
