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(182 N.Y.S.) (111 Misc. Rep. 675)

READE V. HALPIN et al. (Supreme Court, Special Term, Albany County. May 1920.) 1. Pleading w350 (1)-Motion for judgment on pleadings may be made at

Special Term.

Under Code Civ. Proc. $ 547, providing for judgment on the pleadings on motion at any time after issue joined, such motion can be made at Special

Term, as well as at the opening of the trial. 2. Pleading en 350 (3)-On motion for judgment, unamended complaint, after

dismissal as to one defendant, should be considered with the full record.

On a motion for judgment on the pleadings by two defendants, after the complaint had been dismissed on the merits as to a third defendant, following a verdict in his favor, the complaint, though not formally amended,

should be considered in the light of the facts shown by the record. 3. Malicious prosecution w16_Malice, want of probable cause, and failure

essential.

A "malicious prosecution” is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure.

[Ed. Note -For other definitions, see Words and Phrases, First and

Second Series, Malicious Prosecution.) 4. Malicious prosecution Om 42—Where action of prosecutor is lawful, actions

of procurers are remote.

Where the actions of the actors in the proceedings as they appeared upon the record are lawful and proper, and their acts are the proximate cause of the proceedings, the acts and motives of those who procured the acts are immaterial, because remote, and do not sustain an action for

malicious prosecution. 5. Pleading C350 (3)—Verdict for one defendant presumed based on finding

probable cause and absence of malice, on motion for judgment by remain- . ing defendants.

On a motion for judgment on the pleadings in an action for malicious prosecution by two remaining defendants, after the defendant who instituted the proceeding had been dismissed, following a verdict for him at a trial in which the jury disagreed as to the other two defendants, it must be presumed that the jury acquitted the one defendant of being a conspirator, of having lack of probable cause, or of having been malicious, so that the acts of the other two defendants became immaterial, and they were

entitled to judgment. 6. Malicious prosecution 56-Insanity proceedings by superintendent of

poor presumed to be on own responsibility.

Where the superintendent of the poor under the authority given him instituted insanity proceedings, it must be presumed that he acted on his

own responsibility, not on the instigation or procurement of others. 7. Evidence n83(1)-Certificate of examiners in lunacy presumed regular.

On motion by defendants for judgment on the pleadings in an action for malicious institution of insanity proceedings, where there is no allegation to the contrary, the certificate of the medical examiners in lunacy must be presumed to have complied with the statute and to have been based on

an examination made with reasonable care. 8. Malicious prosecution Ou 47—Pleading alleging false representations to ex

aminers in lunacy held insufficient.

A complaint in malicious prosecution, which alleged that defendants made statements to the medical examiners in lunacy concerning plaintiff's history which were false and misleading, which did not allege which of the statements made were true or false, or in what respect any were misleading, and did not allege that the physicians were misled, or that the statements had any bearing on the matter, cannot be upheld. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

9. Malicious prosecution Own 25(1)–Certificate of examiners probable cause

for instituting insanity proceeding.

The certificate of the two medical examiners in lunacy required by the statute furnishes reasonable and probable cause for insanity proceedings, in the absence of showing that the physicians were conspirators, or were

engaged in any unlawful, malicious, or improper schen:e or practice. Action for malicious prosecution by Helen Reade against William J. Halpin and others. On motion by defendants for judgment on the pleadings. Motion granted.

See, also, 166 N. Y. Supp. 82; 181 App. Div. 916, 167 N. Y. Supp. 482; 180 App. Div. 157, 167 N. Y. Supp. 624.

James Farrell, of Troy, for plaintiff.
Thomas S. Fagan, of Troy, for defendants.

HINMAN, J. This is a motion for judgment on the pleadings in favor of the defendants, dismissing the complaint herein on the ground that it does not state facts sufficient to constitute a cause of action. The action is one for malicious prosecution.

The plaintiff alleges that she was a professed nun and a member of the defendant society; that while she was living at the convent of said society, in October, 1914 "the defendants, Freeman H. Munson, William J. Halpin, and said Society of the Sisters of St. Joseph of the City of Troy, through malice, and with intent to injure and defame this plaintiff, and to deprive her of her home and her religious associates, wrongfully conspired to obtain an order committing this plaintiff to an insane asylum, namely, to the Middletown State Hospital, and on said October 13, 1914, the defendant Freeman H. Munson made and verified à petition in lunacy proceedings against this plaintiff, addressed to Hon. Michael A. Tierney, judge of the County Court of the county of Rensselaer, a copy of which petition is hereto annexed, marked Exhibit A and made a part of this complaint. That the statements contained in said petition as the facts upon which the application was based were wholly false and untrue and misleading. That said Freeman H. Munson did not then know this plaintiff, and had no personal knowledge of plaintiff's acts or statements, but relied wholly upon the false information given to him in regard thereto by the defendants William J. Halpin and Society of the Sisters of St. Joseph of the City of Troy. That said information furnished and said statements in said petition purporting to describe the acts and statements of plaintiff were false and untrue and misleading, and were known by said Halpin and by said society to be false and untrue and misleading, and said false information was furnished by said Halpin and by said society through malice, and with the understanding, agreement, and intent that it should be used by the defendant Freeman H. Munson for the purpose of commencing said lunacy proceeding against this plaintiff. That on or about said date, namely, October 13, 1914, the defendant William J. Halpin, who was then the priest acting as chaplain at said convent of the defendant Society of the Sisters of St. Joseph of the City of Troy, furnished certain information to Dr. C. J. Patterson and Dr. James T. McKenna, two physicians who examined plaintiff at about that date in said lunacy proceedings. That said information was in several important particulars wholly false and untrue, and in other important particulars was misleading, and misrepresented the facts to the court to which said information was presented in said lunacy proceedings. That said defendant William J. Halpin then knew said statements to be false and untrue and misleading, but through malice, and with intent to injure this plaintiff, said statements were made and were presented to the said

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.) court. A copy of said information, furnished by said defendant William J. Halpin is hereto annexed and marked Exhibit B and made a part of this complaint. That said Sister M. Irene, and the other local officials of said Society of the Sisters of St. Joseph of the City of Troy, and the defendant William J. Halpin, knew that said statements were false and untrue and misleading, but notwithstanding the said society wrongfully and maliciously prosecuted said lunacy proceedings, with intent to injure and defame the plaintiff, and as a part of the plan and purpose of said Halpin and said society to prevent plaintiff from remaining at said convent. That said petition of the defendant Freeman H. Munson and the certificate of said Drs. C. J. Patterson and James T. McKenna, including said statements and information furnished by the defendant William J. Halpin, were presented to Hon. Michael A. Tierney, county judge of Rensselaer county, and a hearing thereon was subsequently had before said county judge of Rensselaer county, and plaintiff was examined and cross-examined at great length therein. That none of the defendants had any reasonable grounds to believe that the plaintiff was then insane, and the defendants William J. Halpin and the Society of the Sisters of St. Joseph of the City of Troy then knew that the plaintiff was then sane, and so treated and regarded her. That the defendant Freeman H. Munson acted upon the false and misleading information furnished by the defendant William J. Halpin, without reasonable or sufficient inquiry as to its truth or falsity. That said proceeding resulted in a decision wholly in favor of this plaintiff, and said petition was dismissed, and plaintiff was declared to be sane.

“Fourth. That the wrongful and unlawful and malicious acts of the defendants in falsely accusing the plaintiff of being insane, and the unlawful, wrongful, and malicious attempt of the defendants to have plaintiff adjudged insane and committed to an insane asylum, have injured this plaintiff in her standing and reputation as a member of the Society of the Sisters of St. Joseph of the City of Troy, and in the community in which she resides, and have deprived her of the means of support upon which she was accustomed to rely, and have deprived her of the only home which she had known for many years, and of the society of her natural friends and religious associates, and have rendered it almost impossible for the plaintiff to obtain employment in any capacity whatever, and that, by the aforesaid acts of the defendants, plaintiff has suffered loss and damage in the sum of $50,000.”

This action was commenced on October 16, 1916. The defendant duly answered in January, 1917, serving a joint and separate answer as follows:

"(1) These defendants admit that in March, 1901, the plaintiff entered St. Joseph's Convent in the city of Troy, N. Y.

“(2) These defendants admit that on October 13, 1914, the defendant Freeman H. Munson made and verified a petition in lunacy proceedings against this plaintiff, addressed to Hon. M. A. Tierney, judge of the County Court of the county of Rensselaer, but do not admit that Exhibit A, annexed to and made a part of the complaint, is a true copy of said petition; that the said Freeman H. Munson did not then know the plaintiff ; that the defendant William J. Halpin was then a priest, and was acting as chaplain at the convent of the Sisters of St. Joseph in the City of Troy, and that Drs. C. J. Patterson and James T. McKenna were physicians, and that they examined this plaintiff on or about October, 1914, in said lunacy proceedings; that certain information was furnished upon request by the defendant William J. Halpin on or about said time, but do not admit that Exhibit B, annexed to and made part of the complaint, is a true copy of said information; that the petition of the defendant Freeman H. Munson and the certificates of Drs. C. J. Patterson and James T. McKenna were presented to Hon. Michael A. Tierney, county judge of Rensselaer county, and a hearing thereon was subsequently had before said judge of Rensselaer county, and said plaintiff was examined

and cross-examined in said hearing, and that as a result of said proceeding the petition was dismissed and the plaintiff was declared not insane.

“(3) These defendants deny, generally and specifically, each and every other statement, allegation, and averment contained in said complaint, and not hereinbefore specifically admitted or specifically denied.”.

The attorney for the plaintiff has called to the attention of the court, by his own affidavit read upon this motion, that this case has been tried twice, and has been troublesome on both the law and the facts, resulting each time in a disagreement as to the two defendants who are left as the sole defendants in the case. The object of counsel was to call the attention of the court to the fact that this motion for the dismissal of the complaint has several times been made in the courts in connection with the two trials which have preceded, and that the same issue was presented by counsel for the defendants in his brief in the Appellate Division upon an incidental appeal to that court from an order granted herein.

While ordinarily I would feel precluded from entering into a further consideration of such a motion, it seems to me that the history of this case, not only warrants my giving serious consideration to it, but the successful conclusion of this litigation for the good of the parties, and to save unnecessary expense to the county of Rensselaer, and unnecessary interference with the trial of other important litigation in that county, requires that the law of this case, which involves interesting and novel questions, be settled before there shall be another trial. Each time this case has been tried there has been a protracted trial. The first time it was brought to trial in May, 1917, before Mr. Justice Hasbrouck and a jury, resulting in a verdict of no cause of action in favor of the defendant Freeman H. Munson and á disagreement as to the remaining defendants. Upon that trial motions were made for a dismissal of the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, at the outset of the trial, at the close of the plaintiff's case, and at the close of all the evidence. The court denied these motions. Upon the coming in of the report of the jury, with a verdict of no cause of action in favor of the defendant Munson, the defendants Halpin and the society again moved for the dismissal of the complaint as to them, and said motion was denied. There was an appeal from that order denying said motion.

The Appellate Division (180 App. Div. 157, 167 N. Y. Supp. 624) dismissed the appeal, however, upon a matter of practice, holding that the determination of the trial court was not an order, in the sense in which that term is used in the Code of Civil Procedure, from which an appeal could be taken, but that it was a ruling made during the course of the trial, and could only be reviewed upon an appeal from the judgment affected by such ruling. The Appellate Division did not consider the question whether the complaint did state a cause of action, but confined itself to a determination as to the right of appeal from such a ruling.

At the March term, 1918, a second trial of the case was had before Mr. Justice Nichols and a jury, which again resulted in a disagree

(182 N.Y.S.) ment as to the remaining two defendants. Upon that trial the defendants again moved to dismiss the complaint at the beginning of the trial, at the close of the plaintiff's case, and at the conclusion of the testimony. The court again denied each of these motions.

The situation presented now is the complaint against the defendants Halpin and the society, judgment having been entered in May, 1917, in the Rensselaer county clerk's office, dismissing the complaint herein upon the merits in favor of the defendant Munson.

[1] It seems to be the settled practice to permit such a motion under section 547 of the Code of Civil Procedure to be made at Special Term, as well as at the opening of trial. Whatever further trial there is must be a trial de novo as to the remaining two defendants. Realty Associates v. Hoage, 141 App. Div. 800, 126 N. Y. Supp. 709; Dineen v. May, 149 App. Div. 471, 134 N. Y. Supp. 7.

An important purpose to be served in entertaining this motion is that the court at Special Term may give more deliberate consideration to the motion than would be possible under the usual conditions attending a trial term. This is so apparent that I need not apologize further for having seriously considered this motion, nor for reaching a conclusion contrary to the judgment of Justice Hasbrouck and Justice Nichols upon the preceding trials.

The main reason, however, which actuates me in examining the question anew, is the thought that the law of this case should be settled upon appeal before there is a third trial. The very persistency of counsel for the defendants in presenting these motions for dismissal upon the basis of the law as he understands it leads me to believe that, even if there should be judgment against the defendants at a third trial, he would be led to appeal to the highest appellate tribunal for the determination of the law of the case. If there should be one or more further disagreements of the jury, resulting finally in a judgment for the plaintiff, the defendants might, upon resort to the Court of Appeals, obtain a judgment of that court that the complaint stated no cause of action. If that is to be the eventual determination of this case, it would be deplorable that so much time should have been spent and so much expense incurred by the parties and the county needlessly.

I am sufficiently satisfied of the likelihood of the ultimate success of the defendants' contention that the complaint does not state a cause of action to conclude to render judgment in favor of the defendants upon the pleadings. The petition in the insanity proceeding was made by Munson, the superintendent of the poor of the county, and the certificate in lunacy was made by two physicians, examiners in lunacy, not joined as defendants. There is no charge that the physicians conspired with the defendants to have the plaintiff declared insane, and the verdict of the jury has established the fact that there was no cause of action against Munson.

[2] The complaint has not been amended since the entry of judgment dismissing it as against the defendant Munson. It is a fact, however, which is acquiesced in by all the parties, and I will examine the pleadings in view of the true state of the record, as it would be

182 N.Y.S.-4

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