Kaplan v. K. Ginsburg, Inc.

• Decision Date: 09 June 1958
• Citation: 14 Misc.2d 356,178 N.Y.S.2d 25
• Parties: Hyman KAPLAN, Plaintiff, v. K. GINSBURG, INC., Elsie Ginsburg, Lillian Ginsburg Berg and Isidore Seidenberg, Defendants.
• Court: New York Supreme Court

Page 25

178 N.Y.S.2d 25

14 Misc.2d 356

Hyman KAPLAN, Plaintiff, v. K. GINSBURG, INC., Elsie Ginsburg, Lillian Ginsburg Berg and Isidore Seidenberg, Defendants.

Supreme Court, Special Term, Kings County, Part I.

June 9, 1958.

Samuel Shapiro, New York City, for plaintiff.

Steinberg & Patterson, New York City, for defendants K. Ginsburg, Inc., Elsie Ginsburg and Lillian Ginsburg Berg. Robinson, Thebner & McLaughlin, New York City, for defendant Isidore Seidenberg.

M. HENRY MARTUSCELLO, Justice.

Two motions are directed adainst the third amended complaint herein. K. Ginsburg, Inc., the corporate defendant herein, and the individual defendants Ginsburg move to dismiss the first and second causes thereof, pursuant to Rule 106, subd. 4 of the Rules of Civil Practice, on the ground that the facts therein stated are insufficient to constitute a cause of action. Defendant Seidenberg likewise moves to dismiss the first cause of action, pursuant to the aforesaid Rule 106, subd. 4, and to dismiss the third cause of action pursuant to Rule 107, subd. 5 of the Rules of Civil Practice, on the ground that it is barred by the statute of limitations (Civil Practice Act, § 51, subd. 3).

The original complaint set forth a single cause of action, and on motion of all defendants was dismissed by Mr. Justice Hart as insufficient to state an action either for a prima facie tort or for slander, as was the purport thereof (7 Misc.2d 136, 160 N.Y.S.2d 1018).

Leave therefor having been granted, plaintiff served an amended complaint setting forth three causes of action, the first for a prima facie tort against all defendants, the second for slander against the defendant Ginsburg, and the third, also for slander, against the defendant Seidenberg. On motion before Mr. Justice Friedman, the first cause of action was dismissed for insufficiency, with leave to plead over; the second and third causes of action were not dismissed, but the plaintiff was directed to serve a second amended complaint making said causes of action more definite and certain (7 Misc.2d 278, 164 N.Y.S.2d 591).

In the second amended complaint served herein, plaintiff, having revised the allegations previously set forth in support thereof, repleaded the aforementioned three causes of action, as above stated. Mr. Justice Schwartzwald denied motions made by the defendants to dismiss said complaint for insufficiency, but granted alternative relief sought by them by directing plaintiff to serve a third amended complaint making the slander actions more definite and certain by specifying further the time and place of the publication of the slanderous statements therein alleged (8 Misc.2d 724, 168 N.Y.S.2d 192).

The complaint under attack is basically a replica of the second amended complaint, and plaintiff therefore argues that its sufficiency cannot be questioned at this time on the ground that the aforesaid determination of Mr. Justice Schwartzwald is the law of the case with respect thereto, since no appeal was taken in connection with said determination.

Although no case has been found where the question thus presented has been directly raised and passed upon, I believe that the answer thereto is to be found in those cases which treat of the office of an amended pleading. It is well established that when an amended pleading is served, it takes the place of the original pleading and the action proceeds as though the original pleading had never been served. Such original pleading under the circumstances, forms no part of the record and does not set forth the issues which are involved (New York Insulated Wire Co. v. Westinghouse Electric and Manufacturing Co., 85 Hun 269, 32 N.Y.S. 1127, cited in Millard v. Delaware L. & W. R. CO., 204 App.Div. 80, 82, 197 N.Y.S. 747, 748.) Accordingly, any appeal taken by the defendants would have proved unavailing as a remedy since the service of the instant complaint would have necessitated the dismissal thereof as same would thereupon involve a non-existing pleading. The only remedy of the defendants would be to move with respect to the superseding complaint (Waterman v. Marpet, 281 App.Div. 896, 119 N.Y.S.2d 677; Gilchrist House, Inc., v. Guaranteed Title & Mort. Co., 276 App.Div. 778, 92 N.Y.S.2d 896; Millard v. Delaware L. & W. R. CO., supra). I must, therefore, hold that the determination of Mr. Justice Schwartzwald, while of academic value, does not control the disposition of the motions herein.

Turning now to the merits of the complaint, I find that the substance of the first cause of action is as follows: It is alleged that the individual defendants Ginsburg dominated and controlled the corporate defendant Ginsburg; and that said corporate defendant and defendant Seidenberg were engaged in the imitation stone business and had engaged in transactions whereby they exchanged merchandise in which they dealt; and that the plaintiff was employed by the corporate defendant Ginsburg and for almost all of his adult life was engaged as an employee in the imitation stone business, which was his only means of livelihood, and that he had earned therein a good reputation.

It is further alleged that an involuntary petition in bankruptcy was filed against Seidenberg and that he was duly adjudicated a bankrupt; and that in the bankruptcy proceedings his creditors claimed that he had disposed of assets with intent to defraud them and that he, with like intent and the corporate defendant Ginsburg had, with respect to the aforementioned exchange transactions, either made false entries or no entries in their respective books.

Plaintiff also alleged that the defendants conspired to 'intentionally harm and injure plaintiff by destroying his then and potential future association with the imitation stone business': and that pursuant to said conspiracy the defendants caused Seidenberg to state at a meeting of his creditors in connection with the aforesaid proceedings that he and the plaintiff had engaged in transactions whereby the corporate defendant's merchandise was delivered to the defendant Seidenberg on payment in currency to plaintiff for his own account; and that they caused the corporate defendant Ginsburg to state in said proceeding that Seidenberg sold said stones below cost and that the plaintiff denied engaging in such transactions; and that they caused an order to be entered in said proceedings for plaintiff's examination and in pursuance thereof subjected plaintiff to a casual and superficial examination; and that they caused defendant Seidenberg to plead the Fifth Amendment when questioned at a creditors' meeting about the aforesaid exchange transactions; and that they caused plaintiff to be discharged from his employment with the corporate defendant.

It is then alleged that the defendants knew that the acts referred to would be publicized and would create the impression in the imitation stone business that plaintiff has sold the corporate defendant's merchandise for his own account and had...