Pelella v. Pelella

• Decision Date: 13 May 1958
• Citation: 176 N.Y.S.2d 862,13 Misc.2d 260
• Parties: Anthony PELELLA v. Antoinette PELELLA.
• Court: New York Supreme Court

Page 862

176 N.Y.S.2d 862

13 Misc.2d 260

Anthony PELELLA v. Antoinette PELELLA.

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

May 13, 1958.

Benjamin Lichterman, Brooklyn, for plaintiff.

Dominick G. Longo, Brooklyn, for defendant.

HART, J.

Defendant moves under Rule 106, Rules of Civil Practice, to dismiss the complaint in this action for the malicious prosecution of a divorce action upon the ground that it does not state facts sufficient to constitute a cause of action.

In substance the complaint states that the plaintiff is the husband of the defendant; that his wife 'maliciously and without probable cause' instituted a suit in the State of Georgia in April, 1957, for absolute divorce against him; that in the Georgia proceeding the wife 'knowingly wilfully and maliciously, and with intent to defraud the plaintiff and the Superior Court * * * did utter knowingly and wilfully a forged instrument purporting to be the waiver, consent and acknowledgment of service of the plaintiff'; that plaintiff was never served with a summons in the Georgia action; that by carrying such action through to judgment the wife perpetrated a fraud upon the Georgia court and the plaintiff; that the 'uttering of the forged fraudulent instrument' was done maliciously 'to defraud the Georgia Court and the plaintiff'; that since the wife was not entitled to a divorce in the Georgia courts without the express consent of the plaintiff, the obtaining of a void judgment under the circumstances 'was malicious and without probable cause, injuring the plaintiff'; that plaintiff did not appear in such action; that plaintiff subsequently by action instituted in Georgia obtained a judgment vacating and setting aside the divorce 'on the ground that the purported acknowledgment of service attached to the original petition was a forgery.'

The complaint claims special damages in that the plaintiff 'was put to great trouble, inconvenience and expense in prosecuting the action' to vacate, and in 'the instant action, in procuring witnesses, in making investigations, in employing counsel, and taking depositions,' all in the sum of $10,000.

In testing the sufficiency of the complaint all the material allegations of fact are deemed to be true.

For purposes of this decision the court will assume that the utterance and use of the forged waiver in the Georgia proceeding are sufficient allegations of evidentiary facts to prove malice and want of probable cause.

Though there are numerous charges of fraud contained in the complaint it is quite clear that important elements of a fraud action are lacking. The misrepresentation alleged was the utterance of the forged waiver in court in the divorce proceeding against the plaintiff. The uttering of a false document was not made to the plaintiff, nor is it or can it be claimed that the plaintiff relied upon such utterance or misrepresentation and acted upon it in reliance thereon.

The court interprets the purported cause of action as being one 'to recover damages for malicious prosecution of an action for absolute divorce.' That is the exact characterization adopted by the plaintiff in his brief and presumably the theory used by the pleader in the preparation of the complaint. It is, in other words, an action for malicious prosecution of a civil suit as distinguished from an action for malicious prosecution of a criminal proceeding.

The law of the place where the wrong was committed governs on the issue as to whether a cause of action was created in favor of plaintiff (Kerfoot v. Kelley, 294 N.Y. 288, 62 N.E.2d 74). It is the settled law of Georgia, where the tort arose, that in order to maintain such an action, assuming the existence of malice and lack of probable cause in instituting and carrying it through to an unsuccessful conclusion, there must be an interference with the person or property of the plaintiff (Mitchell v. Southwestern Railroad, 75 Ga. 398; Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734).

In Mitchell v. Southwestern Railroad, supra, 75 Ga. at page 405, the plaintiff charged the defendant with maliciously prosecuting an injunction action against the plaintiff, thereby preventing him from rebuilding a dam and causing special damages in being deprived of the use of his property. The Georgia court examined the background of the doctrine and found the common law rule to be: 'Yet there was this distinction: when an action was sued out maliciously and without probable cause, whereby the person of the defendant was arrested, or his property attached, or any special grievance to defendant, then in such a case the action would lie, and, as we understand, that was the common law when this state was a province, and when our adopting statute was passed in 1784, and would have been the law without this statute. There is a case which states this doctrine clearly and explicitly. In Savil v. Roberts, 1 Salkeld R., 13, a decision by Lord Holt, which is declaratory of the common law, in which it is stated that, since the passage of the act allowing costs to defendants where plaintiffs are non-suit or fail to recover, an action for maliciously suing out an action cannot be maintained. Yet, before this statute such actions were constantly brought and maintained; but since the passage of the act, in order to maintain the action, it must be shown that the defendant maliciously sues the plaintiff either with intent to imprison him or do him some special prejudice; then an action on the case lies, and the grievance must be set out specially. We take this to be the common law, and as there is no statute changing this law it is of force in this state.' (Emphasis supplied.)

As recently as 1952 the Supreme Court of Georgia in Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734, had occasion to reaffirm the principle enunciated in Mitchell v. Southwestern Railroad and at the same time review the fundamental distinctions existing between the different causes of action which may be brought as a result of the improper use of court process. In many respects what the court said (209 Ga. at page 105, 70 S.E.2d at page 740) equally applies to the instant action: 'The pleader does not characterize his action. He simply sets forth facts upon which he relies for recovery; and, if these facts are such as in law entitle the plaintiff to recover, it is not necessary that the action should be classified or characterized by any name. * * * There are various forms of action to which resort may be had to recover for an injury sustained by reason of the wrongful use of legal proceedings. Ordinarily the remedy is an action for malicious use or abuse of process. 'The foundation of an action for malicious prosecution is an original proceeding, judicial in character.' 54 C.J.S. Malicious Prosecution § 5, p. 957. * * * It was held * * * that a cause of action for malicious prosecution or the malicious use of legal proceedings may be predicated upon the prosecution of an administrative proceeding.'

It was the plaintiff's claim in the Dixie case that defendants had maliciously and without probable cause, initiated proceedings against him before the Federal Communications Commission; that the charges were false and untrue; that the proceedings had terminated finally in plaintiff's favor; and that his personal reputation and his radio business had been injured and damaged thereby. Of the plaintiff's claim the court said (209 Ga. at page 106, 70 S.E.2d at page 741): 'Those are the necessary elements of an action for the malicious use of legal process or the malicious use of a civil proceeding. Code, § 105-801; Juchter v. Boehm, Bendheim & Co., 67 Ga. 534; Mitchell v. Southwestern RR., 75 Ga. 398; Coleman v. Allen, 79 Ga. 637, 5 S.E....