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(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 a 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

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a mere idle formality to require amendments, or to decide the motion on matters contrary to the true state of the record as conceded by all of the parties.

Therefore the situation, on the pleadings, is that the defendants Halpin and the society are charged with a conspiracy to have the plaintiff declared insane, that the physicians who made the certificate in lunacy are not joined as defendants and are not charged with any misconduct, and that the defendant who made the petition, namely, Munson, has been held blameless by the verdict of the jury. Vose v. Yulee, 64 N. Y. 449.

[3] A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure. Burt v. Smith, 181 N. Y. 1-5, 73 N. E. 495, 2 Ann. Cas. 576. It seems to be settled that in an ordinary civil action, if the person or property of the defendant therein has not been interfered with, the action for malicious prosecution will not lie, even though such civil action was instituted maliciously and without probable cause, and was for the conversion of moneys under circumstances amounting to grand larceny. Paul v. Fargo, 84 App. Div. 9, 82 N. Y. Supp. 369.

In the case of Halberstadt v. N. Y. Life Ins. Co., 194 N. Y. 1, 86 N. E. 801, 21 L. R. A. (N. S.) 293, 16 Ann. Cas. 1102, which was a case of alleged malicious prosecution by means of criminal process, the Court of Appeals did not overrule the doctrine laid down in Paul v. Fargo, but said that it must be interpreted with reference to the fact that it was concerned with civil process and that in a criminal case the basis of recovery—

"may be that inflicted upon the feelings, reputation, and character by a false accusation, as well as that caused by arrest and imprisonment."

Passing the question, however, whether the proceeding in lunacy was in the nature of a civil or criminal prosecution, and whether a cause of action for malicious prosecution can arise out of such a proceeding, where there has been no interference with the person or liberty or property of the plaintiff, but assuming that a cause of action for malicious prosecution can arise out of such an insanity proceeding, the first question which presents itself is whether the complaint states a cause of action against the remaining defendants; Munson, one of the real actors, having been held blameless, and the physicians, the other real actors, not having been charged with any wrongdoing. In a malicious prosecution action arising out of a criminal case, it has been held immaterial whether the defendant alone formally prosecuted an arrest, or whether he stirred up and procured another to do it. Dann v. Wormser, 38 App. Div. 460, 56 N. Y. Supp. 474.

[4] Assuming, for the present, the applicability of this decision in a criminal cause, it must be conceded that, where the actors as they appear upon the record act lawfully and properly and their acts are the proximate cause, the acts and motives of those who procure them to act become immaterial, because remote.

[5] The jury has found that there was no cause of action

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against Munson. It may be contended that the jury may have found this, either because there was no malice on his part, or because there was probable cause, and not because of the absence of both malice and probable cause. Surely, however, in the absence of a conspiracy between the defendants, including Munson, it could not be said that that was an absence of probable cause to believe he would succeed in the mind of Munson, when he was supported in his petition by the certificate of two qualified medical examiners in lunacy, who rendered to him an opinion that the plaintiff was insane, and who were not charged by the complaint with being co-conspirators. Also, how can it be inferred that the jury concluded there was any presence of malice on the part of Munson, notwithstanding the fact that he was charged by the complaint with a reckless and careless failure on his part to investigate statements alleged to have been made to him, where it appears upon the face of his petition, which is a part of the complaint, that he stated facts "observed by or information known to him," which would tend to show the existence of insanity? This petition was verified by him, and, if the charge alleged against him in the complaint is true, it must be assumed that he was guilty of perjury in his petition in having alleged that the facts stated by him were "observed by or information known to him." There cannot be any inference, however, that the defendant Munson was guilty of the crime of perjury. If this be so, then Munson did not rely upon anything but his own observation and knowledge as stated in his petition. I therefore believe it must be presumed that the jury acquitted Munson of being a conspirator, or of having lack of probable cause, or of having been malicious. It follows, also, that the act of Munson was the proximate cause, and any acts of the other defendants, however malicious and lacking in probable cause, become immaterial, be

cause remote.

The defendant Munson, who signed the petition and who instituted it before the county judge, was the superintendent of the poor of Rensselaer county, and it is alleged that he in effect was the tool and agent of the two remaining defendants, and that the information as to the acts and statements of the plaintiff, recited in the petition, were false and untrue, and were furnished by the two remaining defendants with the understanding, agreement, and intent that it should be used by the defendant Freeman H. Munson for the purpose of commencing said lunacy proceedings against this plaintiff. The dismissal of the complaint on the merits as against the defendant Munson authorizes the dismissal of the complaint as to the other two defendants, not only because the conspiracy charge has failed, and because Munson's own act was the proximate cause, but for an additional reason which sounds in good public policy.

It was the purpose of this law, not only to be of service to those who are not responsible for their acts, and need the institutional care afforded by the state, but for the benefit of the public at large, who need protection from their irresponsible acts. It is a very old institution of the state, and the law has surrounded the proceeding with every reasonable safeguard for the protection of the individual

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