Conwell v. Partow

In an action, in which the original complaint pleaded five causes of action for libel and slander, and in which the supplemental complaint (served pursuant to court order) pleaded a sixth cause of action arising out of defendants’ collusive conduct in instituting an action for divorce by | the female defendant against the male defendant based upon a fraudulent claim that he had committed adultery with plaintiff, the defendants appeal from I an order of the Supreme Court, Nassau County, dated July 5, 1962, which denied their motion to dismiss for patent insufficiency the said sixth cause of action alleged in the supplemental complaint (Rules Civ. Prae., rule 106, su-bd. 4). I On a prior appeal, the sufficiency of the third cause of action was sustained (16 A D 2d 825). Order affirmed, with $10 costs and disbursements, with leave to defendants to serve their answer to the supplemental complaint within 20 days after entry of the order hereon. The sixth cause of action alleges in substance that, “ for the sole purpose of inflicting damage upon the infant plaintiff ”, the defendants (husband and wife) unlawfully conspired for the wife to institute a divorce action against the husband based on knowingly false charges that he committed adultery with the present infant plaintiff; that such divorce action was subsequently commenced; and that it was discontinued “ with prejudice ”j The order of the court on the discontinuance provided, in effect, that such order shall have the effect of a judgment on the merits in favor of the infant plaintiff respecting all the allegations of adultery against her set forth in the complaint in said divorce action. A cause of action such as the sixth may not only be maintained, but is here sufficiently alleged (Schauder v. Weiss, 88 N. Y. S. 2d 317, affd. 276 App. Div. 967; Verplanch v. Van Buren, 76 N. Y. 247; Cohen v. Fisher & Co., 135 App. Div. 238, 243). Beldock, P. J., Ughetta, Brennan, Hill and Rabin, JJ., concur.