Netchi v. Bernard

8 Misc. 2d 1035, 167 N.Y.S.2d 89, 1957 N.Y. Misc. LEXIS 2522

• Court: New York Supreme Court
• Decided: September 12, 1957
• Status: Published

Opinion

William O. Hecht, Jr., J.

Defendant Bernard moves for dismissal of the complaint pursuant to subdivision 4 of rule 107 of the Buies of Civil Practice. In a first cause of action against the moving defendant the plaintiff seeks to recover damages based upon a claim of fraudulent inducement and in a second cause against him and another in conspiracy whereby they fabricated and produced a spurious document which was received in evidence in an arbitration proceeding. The plea of bar by prior adjudication rests upon a judgment entered upon an order confirming an award. The arbitration had proceeded upon an alleged breach by plaintiff of the contract claimed to have been fraudulently induced. The order of affirmance was made on default. At that time the claimed fraud was known. That claim and the claim of conspiracy were asserted on plaintiff’s application to vacate the order of confirmation and had been alluded to before the board of arbitrators. Once the arbitration was commenced and before any award was confirmed, the issue of the existence of the contract and its. validity could have been properly tendered as it was attempted in the mentioned instances. The application to vacate was denied. The present disclaimer of the contract and claim of right to recovery of damage for fraud, if brought to judgment in favor of the plaintiff, would destroy the prior judgment.

There is no civil action for perjury or the use of false documents. Additional allegation of conspiracy adds nothing.

The motion is granted, dismissing the complaint as to the moving defendant Bobby Bernard. Settle order providing for severance.