Cochrane, J..:
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 *569interfered with by order of arrest, warrant of attachment or otherwise. (Paul v. Fargo, 84 App. Div. 9; Breckheimer v. Loew, 168 id. 956.) There is an irreconcilable conflict of authorities in the various jurisdictions in respect to thejquestion decided in those cases. No authority, however, to which our attention has been called holds that an insanity proceeding as above indicated may not constitute the foundation of an action for malicious prosecution. The cases cited are not applicable to such a proceeding. It is not an “ ordinary civil action ” as were those cases. In respect to its relation to an action for malicious prosecution it much more closely in its characteristics resembles thé characteristics of a criminal action. It is not instituted for the enforcement of an individual right or the redress of an individual wrong. The person who institutes it has nothing personally to gain or lose and if acting in good faith his sole purpose is the protection of the alleged lunatic and the protection of society. In its consequences it may be more serious than a criminal prosecution. It seeks nothing less than the incarceration of the individual proceeded against. The reasons which have been deemed controlling in those cases which hold that a civil action maliciously prosecuted does not give a cause of action to the person thus maliciously prosecuted do not exist in respect to a proceeding under the Insanity Law. Even the meager compensation of costs recovered by a successful defendant in a civil action, which circumstance is sometimes given as a reason why a civil action maliciously prosecuted cannot be made the basis of another action, is not available under that law. In the absence of any authority holding that this action may not be maintained we think it should be held that the principles applicable to a malicious criminal prosecution apply here and that the complaint accordingly states a cause of action.
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 *570of the defendant society and such certificate was required to be accompanied by the petition of the defendant Munson (Insanity Law, § 80) which was based on false information given by said defendant Halpin and known by him and the defendant society to be untrue. It cannot be determined from the complaint that the medical examiners would have certified that the plaintiff was insane except for the false information designedly given them by the defendants. If the complaint is true they were at least partly responsible for the certificate of lunacy which was in fact false. It is expressly alleged in the complaint that they “ knew that the plaintiff was then sane and so treated and regarded her.” It was decided in the lunacy proceeding that the certificate of the medical examiners was false and the meaning of the complaint, therefore, is that the defendants, knowing the plaintiff to be sane, must have known that the certificate was false and helped to make it false.
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.