193 A.D. 566 | N.Y. App. Div. | 1920
The complaint contains all the elements of an action for malicious prosecution, providing a proceeding for the commitment of an insane person under article 4 of the Insanity Law may constitute the basis for such action. It has been held in this State that an action cannot be maintained for the malicious prosecution of an ordinary civil action where the person or property of the defendant in that action is not
It is suggested that it appears on the face of the complaint that two qualified medical examiners certified to the lunacy of the plaintiff and that, therefore, the defendants had probable cause to believe she was insane. That might be so if they had acted solely on the strength of such certificate. But it appears from the complaint that the certificate itself of these lunacy examiners consists partly of false information fraudulently furnished by the defendant Halpin with the knowledge
Affidavits were presented on the motion showing the proceedings subsequent to the joinder of issue and that there had been two trials of this action at one of which a verdict in favor of the defendant Munson was rendered and at both of which the jury disagreed as to the other defendants. There is no authority for the use of affidavits on a motion of this kind which is based solely on the pleadings. If we were at liberty, however, to consider the fact that the defendant Munson had been exonerated it would not change our decision. One of several defendants may be liable in an action of this nature. A verdict in favor of the defendant Munson is not inconsistent with a verdict against the others, and those authorities which hold that the exoneration of one of several tort feasors responsible for the same tort exonerates the others when the one exonerated was primarily responsible have no application to the present case.
The judgment and order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concur; Kiley, J., in result.
Judgment and order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.