Simmonds v. Sowers

253 A.D. 819, 1 N.Y.S.2d 339, 1938 N.Y. App. Div. LEXIS 8762

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1938
• Status: Published

Opinion

Consolidated actions (1) brought by the plaintiff-appellant against both defendants to recover damages alleged to have been sustained as the result of a conspiracy between them directed against the plaintiff-appellant, and (2) brought by her against the defendant Sowers only, to recover damages for malicious prosecution. The amended complaints were dismissed at the close of plaintiff’s proofs. Plaintiff appeals from the judgment entered thereon and from the decision dismissing the complaints. Judgment in favor of the defendants dismissing the amended complaints in the consolidated actions unanimously affirmed, with costs. Appeal from decision dismissed. The proofs were wholly insufficient in law to establish prima facie the existence of the alleged conspiracy. Assuming, however, that those proofs were sufficient, there was no proof of legal damage sustained by the plaintiff as a result of acts of the defendants. (Rhodes v. Ocean Accident & Guarantee Corp., Ltd., 235 App. Div. 340; Stamabelis v. Mickros, 136 Misc. 46, and eases cited.) In the malicious prosecution phase, the appellant’s proofs were likewise insufficient to warrant recovery. The conviction of the appellant of disorderly conduct in the Magistrate’s Court established prima facie the existence of probable cause for the prosecution, notwithstanding the subsequent reversal of that judgment on appeal (Staton v. Mason, 119 App. Div. 437, and cases therein cited), and the plaintiff as matter of law failed to establish that such judgment was procured by fraud, perjury, conspiracy or other undue means. (Id.) No appeal lies from a decision. Present — Hagarty, Davis, Adel, Taylor and Close, JJ.