Finsilver v. Still

Martin, J. The plaintiff seeks to recover $250,000 damages for malicious prosecution by the defendant. The defendant moved to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The court at Special Term denied the motion and said: “ The doctrine laid down in Graham v. Buffalo General Laundries Corporation (261 N. Y. 165) with which this court necessarily can have no quarrel does not invalidate the complaint herein, but rather supports it. Unequivocally the Court of Appeals holds in the authority cited that want of probable cause is sufficiently alleged if it be stated that the conviction resulted from false testimony. The complaint obviously is drawn to come within the exception to the rule that want of probable cause is insufficiently asserted, even if alleged, if it appears that the magistrate after a hearing held the accused.” The defendant now appeals and urges a reversal of the order denying the motion to dismiss the complaint, on the ground that the complaint failed to comply with the requirements for a good pleading set forth in the case of Graham v. Buffalo General Laundries Corp. (supra). In that case the Court of Appeals held that where a plaintiff in an action for malicious prosecution had been held by a magistrate after a hearing, there was a presumption of probable cause, and to overcome that presumption a plaintiff must plead appropriate facts showing an exception to that rule. The law is well settled that a plaintiff must set forth facts in his complaint. This complaint sets forth conclusions only. There is an important distinction between alleging facts and setting forth mere conclusions. The third paragraph of the complaint, which is on information and belief, alleges: “ Third. Upon information and belief that in making the charges both before the aforesaid Magistrates and Grand Jury of the County of New York, the defendant misrepresented and falsified the evidence, and withheld information and facts which would have affected the result before the aforesaid Magistrates and had the defendant not misrepresented or falsified the evidence, or withheld the aforesaid information and facts, the plaintiff would not [89] have been held for action by the Grand Jury of the County of New York.” In the case of Hopkinson v. Lehigh Valley R. R. Co. (249 N. Y. 296), which is cited in Graham v. Buffalo General Laundries Corp. (supra), the Court of Appeals stated that a plaintiff in a malicious prosecution action, to meet this prima facie evidence of probable cause must show “ that the defendant did not make a full and complete statement of the facts either- to the magistrate or to the district attorney; has misrepresented or falsified the evidence, or else has kept back information or facts which might have affected the result.” In the present complaint the plaintiff has simply set forth the language used in the Hopkinson case and has restated on information and belief the conclusions set forth in that opinion. If a pleader may meet the requirements of the Graham case in any such manner that decision would be rendered ineffectual. The plaintiff fails to allege how the defendant misrepresented or falsified the evidence; he fails to set forth the information or facts which were withheld, which if not misrepresented or falsified or withheld would have affected the result. The contention is made that to plead such details would be pleading evidence. There is a substantial distinction between pleading evidence and pleading facts. The difference is pointed out by the court in the case of Butler v. Viele (44 Barb. 166) as follows: “ The burden of charging as well as proving fraud is on the party alleging it; and while it is not necessary or proper that he should spread out in his pleading the evidence on which he relies, he must aver, fully and explicitly, the facts constituting the alleged fraud; mere conclusions will not avail.” That the pleading of mere conclusions will not suffice was recently decided by this court in Green v. General Cigar Co., Inc. (238 App. Div. 638). Mr. Justice O’Malley there said: “ However, mere allegations that the charges were false and that the defendant acted maliciously and without probable cause are not sufficient, where the complaint also shows on its face that the plaintiff was either held by a committing magistrate or was indicted by a grand jury. Under such circumstances a defendant is not informed as to the charges he must meet. He is merely informed that he must meet a charge of malicious prosecution, though the complaint on its very face shows probable cause. Such is clearly insufficient. (Graham v. Buffalo General Laundries Corp., supra, 168.) ” This statement of the law is supported by a number of authorities in this State and in Massachusetts. In Knapp v. City of Brooklyn (97 N. Y. 520) the Court of Appeals [90] held that where the complaint in an action avers only' the legal conclusion of an unlawful increase of an assessment without stating facts as its basis or specifying any particulars of the alleged unlawful character of the procedure, the pleading is defective. . In Dunn v. Gray Company (254 Mass. 202), in a malicious prosecution action, the court considered the subject here under consideration. The complaint in that case alleged that the defendant “ did falsely, fraudulently, maliciously and by perjury and subornation of perjury, and without any probable cause, prosecute and aid in prosecuting said complaint against the plaintiff.” The court said: “ It is the general rule, that conviction by the court to which the complaint was made is a bar to an action for malicious prosecution.” At page 204 the court declared: “ It is not enough to allege the general opprobrious epithets employed in the present declaration. It is easy to frame reproachful expletives. A defendant as a matter of justice ought not to be required to answer them and the time of the courts ought not to be consumed by inquiry into them. The law requires a definite statement of specific facts constituting a wrong as a basis for judicial proceedings; No sufficient facts are set out in this declaration to show that the conviction before the trial magistrate was caused solely by wrongful conduct of the defendant and thus was within the exception to the general rule.” In the case of City of Boston v. Treasurer & Receiver General (237 Mass. 403), in passing upon conclusions the court said: “ The general averments ‘ excessive, unreasonable, unnecessary and illegal,’ standing alone and without statement of definite acts or facts which might accurately be described by such expletives, are of no consequence and do not merit judicial inquiry, and of course are not admitted by the demurrers.” In Cosmopolitan Trust Co. v. Agoos Tanning Co. (245 Mass. 69) the court said: “ The allegation that the transaction was a fraud is of slight consequence by itself and is not enough to require judicial examination of the cause. Definite facts must be set out which constitute fraud without the aid of merely descriptive epithets.” (See, also, Dennehey v. Woodsum, 100 Mass. 195.) It is evident that pleading the conclusions that the defendant misrepresented and falsified the evidence, and withheld information and facts which would have affected the result before the magistrate is insufficient in that it does not overcome the presumption of probable cause arising from the holding by the magistrate. If mere conclusions of that character were permitted to make a complaint-good, a defendant would not be protected. The use of such words as “ false,” “ fraudulent,” “ unreasonable,” “ evasive ” and [91] similar words which are mere generalities does not convey any definite information to a party to an action and neither sets forth facts nor gives any idea what the pleader will contend takes the case out of the general rule. The defendant has a right to know the facts and not be compelled to face mere conclusions which, standing alone, mean nothing. The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted, with leave to the plaintiff to serve an amended complaint within twenty days after service of order, upon payment of said costs. Finch, P. J., Townley and Glennon, JJ., concur; Merrell, J., dissents and votes for affirmance.