Benton v. Kennedy-Van Saun Mfg. & Eng. Corp., KENNEDY-VAN

• Decision Date: 26 June 1956
• Docket Number: KENNEDY-VAN
• Citation: 152 N.Y.S.2d 955,2 A.D.2d 27
• Parties: Paul BENTON, doing business under the name and style of Benton Associates, Plaintiff-Appellant-Respondent, v.SAUN MFG. & ENG. CORPORATION, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 955

152 N.Y.S.2d 955

2 A.D.2d 27

Paul BENTON, doing business under the name and style of Benton Associates, Plaintiff-Appellant-Respondent, v. KENNEDY-VAN SAUN MFG. & ENG. CORPORATION Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

June 26, 1956.

Louis S. Posner, New York City, of counsel (Samuel Conrad Cohen, New York City, attorney) for plaintiff-appellant-respondent.

Herman S. Axelrod, New York City, of counsel (Maitland M. Axelrod, New York City, on the brief; Isaac Gluckman, New York City, attorney) for defendant-respondent-appellant.

Before PECK, P. J., and BREITEL, BOTEIN, and COX, JJ. BOTEIN, Justice.

Special Term dismissed the fourth amended complaint in this case as insufficient, but granted leave to serve a fifth amended complaint.

In substance, the complaint alleges that the Republic of Haiti gave to Haitian Cement and Lime Manufacturing Corporation the exclusive concession to build and operate certain cement plants in that country. Haitian then contracted to have Caribbean Construction Corporation build one of its plants. Caribbean in turn subcontracted separately with plaintiff, an engineer, and defendant corporation to have each of them furnish certain specified labor, material and supplies.

Plaintiff then alleges that defendant corporation, with full knowledge of the agreements between the parties, caused the subcontract between plaintiff and Caribbean to be terminated and canceled, by means of a labyrinthine process whereby defendant obtained control of Haitian, caused it to give up its concession with Haiti and unlawfully to cancel its agreement with Caribbean. It is asserted that this was done so that defendant and its affiliated company could obtain the exclusive concession to build the cement plants in Haiti, and to deprive plaintiff of the benefit of its subcontract, so that the defendant could divert all the profits to itself.

Plaintiff, however, does not allege the necessary ultimate facts to support his claim. Perhaps the difficulty lies in the fact that he is trying to sustain the one cause of action he pleads on two different and utterly irreconcilable theories. He argues that the complaint alleges sufficiently both a 'prima facie' tort and a tort of wrongful interference with contract.

Under no circumstances, upon such facts as he has alleged, will plaintiff be able to plead a sufficient cause of action based on 'prima facie' tort. 'The remedy [of prima facie tort] is invoked when the intention to harm, as distinguished from the intention merely to commit the act, is present, has motivated the action, and has caused the injury to plaintiff, all without excuse or justification.' Ruza v. Ruza, 286 App.Div. 767, 769, 146 N.Y.S.2d 808, 811. See also Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401; Knapp Engraving Co., Inc., v. Keystone Photo Engraving Corp., 1 A.D.2d 170, 148 N.Y.S.2d 635; Brandt v. Winchell, 283 App.Div. 338, 127 N.Y.S.2d 865. While harm to plaintiff of course followed the successful consummation of defendant's scheme, it was caused primarily by defendant's thrust for profits. The complaint alleges that defendant acted 'in order for its own benefit to acquire said contracts and profits therefrom'.

It is clear from this and similar allegations that the primary objective of defendant was to take over the potentially profitable work to be performed under plaintiff's contract. If this were defendant's purpose and we may draw no other inference, it did not constitute the malicious and unjustifiable attempt to injure plaintiff that is an essential ingredient in an action for 'prima facie' tort. Intent to bypass, circumvent, or to destroy plaintiff's contract there may have been; but if carried out by lawful means, motivated chiefly by a desire to make profits, there is no actionable wrong, even though there is a callous disregard of the incidental injury to plaintiff which would necessarily follow. Defendant's self-interest negatives malice, even though the means employed might be of questionable morality and ethical validity. Competition as such, no matter how vigorous or even ruthless, is not a tort at common law.

On the other hand, if defendant used unlawful means, it may be that it could be held in damages for committing the tort of unlawful interference with plaintiff's contract. 'It is a wrongful act, done intentionally, without just cause or excuse, and from this a...