103 Misc. 80 | N.Y. Sup. Ct. | 1918
The complaint in substance alleges that the plaintiff made and delivered to the defendants certain promissory notes representing an indebtedness for merchandise purchased. That subsequently to the giving of said notes the merchandise was returned and received in full satisfaction of said indebtedness and in payment of the notes given. That notwithstanding such settlement and payment the defendants (who were copartners) conspiring
The defendants contend the complaint fails to state a cause of action, and move for judgment dismissing the complaint.
The complaint is an amended one. A similar motion for judgment was made on the original complaint, and the motion of the defendants granted. On appeal the order was affirmed at the Appellate Division with a modification giving the plaintiff the right to serve an amended complaint. The plaintiff accordingly amended, and the defendants now move for judgment on the amended complaint.
Among other things the defendants’ counsel con
I am of the opinion that there is no substantial difference between the original and amended complaint. In the original action the plaintiff sought to recover damages in the nature of counsel fees and other expenses incurred in the defense of the action on the notes in question. In the amended complaint there is an allegation that the acts complained of were in addition done for the purpose of injuring the business and credit of the plaintiff and the claim to recover is increased on that account. In the original complaint it is alleged that the acts complained of were done with the “ intent to cheat and defraud the plaintiff.” In the amended complaint it is alleged the same acts were done “ with intent to cheat, defraud and do damage to the plaintiff and ruin said plaintiff in its business, ” and that such acts were done “ wrongfully, fraudulently and maliciously and without reasonable and probable cause.”
All I can discover substantially new in the amended complaint is the allegation that the acts complained of were done “ maliciously and without reasonable and probable cause.” The original complaint did not contain these words, but did allege that the defendants conspired to cheat and defraud the plaintiff and committed the overt acts pursuant to such unlawful conspiracy.
I do not think the mere use of the words “ maliciously and without reasonable and probable cause ” adds much if anything. If the defendants did in fact conspire to “ cheat and defraud ” and followed the conspiracy by overt acts to carry into effect their illegal agreement,, such acts justified the inference
Outside, however, of the question of stare decisis, and treating the sufficiency of the amended complaint as an undecided question, we think the defendants’ motion for judgment should be granted on the ground the complaint fails to state a cause of action.
The case of Paul v. Fargo, 84 App. Div. 9, must, in our opinion, be deemed decisive of the questions as to the sufficiency of the complaint, and lays down a rule of law which must control until a contrary doctrine has been held. The case arose and was decided by the Appellate Division of this department. It is squarely in point. The plaintiff in the case of Paul v. Fargo was employed as the agent of the American Express Company, and received a package of money from a local bank to be forwarded to a bank in New York. The defendant claimed the package was never delivered to the New York bank, and charged that Paul, the plaintiff, converted the money to his own use, and the express company brought an action against Paul for such conversion. The case was tried and resulted in a verdict in favor- of Paul of no cause of action, upon which a final judgment was entered. Thereupon Paul brought an action against Fargo as president of the express company, charging the malicious prosecution of the action against him, and alleging malice and want of probable cause, and injury to his business and reputation, and damage by way of expenses incurred in defending the suit. In fact the allegations of the plaintiff in Paul v. Fargo were substantially the same as those contained in the plaintiff’s
In any event, in disposing of the case in hand we feel bound to follow the rule laid down in Paul v. Fargo. There is no allegation or claim that in this action the defendants resorted to any provisional
We are of the opinion the motion of the defendants should be granted, and the complaint be dismissed, with ten dollars costs of this motion.
Motion granted, with costs.