Bob v. Hecksher

Townley, J. The complaint sets forth in one cause of action a number of separate and independent torts claimed to have been committed by various defendants at different times affecting the [83] defendants’ rights in three different corporations and two separate blocks of collateral. The only connection between these separate torts is the allegation in the complaint that they were all done in furtherance of a common purpose on the part of the defendants to deprive plaintiff of his property. Such allegation does not change the essential character of the separate causes of action stated in the complaint and convert these several separate torts into a single cause of action. (Green v. Davies, 182 N. Y. 499; Brackett v. Griswold, 112 id. 454; Miller v. Spitzer, 224 App. Div. 39.) The rule laid down in the opinion of this court in Green v. Davies (83 App. Div. 216) was not accepted by the Court of Appeals when the case finally came before that court on the subsequent appeal. The original complaint in Green v. Davies set forth a number of independent slanders uttered by separate defendants on different occasions. On the original appeal" this court held that the complaint stated but one cause of action. Thereafter the plaintiff served an amended complaint in which the original causes of action were stated in the exact terms of the original complaint and to which was added a cause of action for malicious abuse of legal process. This complaint was again attacked by demurrer upon the ground originally urged as to the separate cause of action for slander and upon the further ground that the causes of action for slander and malicious prosecution could not be united in the same complaint. By a divided court the order of the Special Term overruling this demurrer was affirmed (100 App. Div. 359). Defendants then appealed to the Court of Appeals. The ground of the demurrer was stated by the Court of Appeals in its opinion to be “ that separate causes of action were improperly joined, to wit: First, a cause of action for slander and one for malicious abuse of legal process; second, a cause of action for slander uttered by one of the appellants with causes of action for slanders uttered by the other defendants ” (182 N. Y. at p. 503). Plaintiff sought to sustain the complaint upon the theory that while causes of action for slander and for malicious prosecution might not be joined, the cause of action stated was a cause of action in conspiracy to injure the plaintiff and that the slanders and arrest were mere incidents. In answering this claim, the court (p. 504) quoted the following excerpt from an opinion of Judge Andrews in Brackett v. Griswold (supra): “ The gravamen is fraud and damage', and not the conspiracy. * * * The allegation and proof of a conspiracy in an action of this character is only important to connect a defendant with the transaction and to charge him with the acts and declarations of his co-conspirators, where otherwise he could not have been implicated. But a mere [84] conspiracy to commit a fraud is never of itself a cause of action, and an allegation of conspiracy may be wholly disregarded and a recovery had, irrespective of such allegation, in case the plaintiff is able otherwise to show the guilty participation of the defendant.” Concerning the second objection to the complaint which related to the question of whether the separate slanders uttered by the different defendants constituted separate causes of action, the court said (p. 506): “ As to the second objection to the complaint, that an action for slander can be maintained against one person only, we are of opinion that it is not well founded. * * * We do not mean to suggest that the repetition by one person of a slander uttered by another is any part of the original slander. On the contrary, they give rise to two distinct causes of action. But if the two slanders were uttered in pursuance of a common agreement between the parties that Such slanders should be uttered, then each is jointly liable with the other for their utterance and separate causes of action for slander may be joined in the same complaint under section 484 of the Code.” By that decision the Court of Appeals held that the conspiracy allegations contained in this complaint accomplished nothing beyond establishing common responsibility on the part of all of the defendants for the acts of any of the defendants who might be shown to have participated in the conspiracy. It was also clearly held that the separate slanders uttered by each of the defendants constituted separate causes of action. The other authorities referred to in the dissenting opinion are inapplicable to the facts of this case. They were all cases where plaintiff had suffered a loss of a single piece of property or a single right but where that loss had been accomplished by a number of wrongful acts. In this case the plaintiff claims compensation for being deprived of at least.five separate pieces of property by a series of wholly unrelated torts. He should be required to separately state and number these different causes of action. The motion for reargument should be granted, and upon such reargument the order appealed from should be affirmed, with ten dollars costs and disbursements, and the order of this court entered herein on the 15th day of January, 1932, vacated. McAvoy and O’Malley, JJ., concur; Martin, J., and Finch, P. J., dissent.