Psaty v. Fifth Avenue & Ninety-third Street Corp.

132 Misc. 278 | N.Y. Sup. Ct. | 1928

Frankenthaler, J.

It is evident that the complaint states a cause of action for the alleged malicious prosecution of the civil action previously commenced by these defendants against the plaintiff. It is equally apparent that the reference to the order of arrest obtained in that litigation was due to the fact that such an allegation is, in this State, a necessary element of a cause of action for the malicious prosecution of a civil action. (Sachs v. Weinstein, 208 App. Div. 360, 365.) The plaintiff’s right to sue pursuant to the remedy he has chosen to invoke did not accrue until the termination of the action brought by these defendants against him. Until that time it was impossible to ascertain whether the outcome would be favorable or unfavorable to the plaintiff herein. The vacatur of the order of arrest may have given plaintiff the immediate right to start an action for false imprisonment or for malicious arrest, but plaintiff has elected to pursue an entirely distinct remedy in which his recovery may include the expense incurred in defending the prior action. Indeed, plaintiff’s right to bring this action is not based upon the vacating of the order of arrest, but rather upon the fact that the action in which it was granted terminated in plaintiff's favor. As it is conceded that the present action was commenced within two years after the entry of judgment in the former litigation, the motion to strike out the defense of the Statute of Limitations is granted. The second defense is, however, sufficient since it alleges, in effect, that the action commenced by these defendants was not prosecuted by them because the present plaintiff agreed to a compromise, which included a release on his part of all claims by him against them. In other words, the gist of the defense is that the termination of the action was not on the merits, but “ by agreement or settlement of the parties.” (Halberstadt v. New York Life Ins. Co., 194 N. Y. 1.) The motion to strike out the second defense is denied. Order signed.