Francisco v. Little Falls Dairy Co.

249 A.D. 922, 293 N.Y.S. 282, 1937 N.Y. App. Div. LEXIS 10164

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1937
• Status: Published

Opinion

Order modified by striking out the complaint and permitting plaintiff, within ten days after service of this order, to serve an amended complaint, in which, if causes of action for both malicious prosecution and false arrest are alleged, they shall be separately stated and numbered, and as modified affirmed, without costs. Memorandum: We concur in the decision of the Special Term that a cause of action for false arrest is alleged in the complaint, and that a cause of action for malicious prosecution is not alleged; but we find that the facts supporting the two causes of action are so interwoven that some allegations relate to both causes, so that striking them out of one cause would deprive the other cause of the benefit of them and that the best result will be reached by an entirely new complaint. All concur. (The order denies motion- to dismiss cause of action on alleged malicious prosecution but denies motion to dismiss cause of action based on false imprisonment.) Present — Sears, P. J., Edgcomb, Crosby, Lewis and Cunningham, JJ.