Quigley v. Hawthorne Lumber Co.

• Decision Date: 02 February 1967
• Docket Number: No. 64 Civ. 1824.,64 Civ. 1824.
• Citation: 264 F. Supp. 214
• Parties: Thomas R. QUIGLEY, Paul S. Austin, Louis Daniel, Preston Murphy, Arthur G. Swainson, Joseph L. Vaine, and Robert S. Jernigan, Plaintiffs, v. HAWTHORNE LUMBER CO., Inc., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

264 F. Supp. 214

Thomas R. QUIGLEY, Paul S. Austin, Louis Daniel, Preston Murphy, Arthur G. Swainson, Joseph L. Vaine, and Robert S. Jernigan, Plaintiffs, v. HAWTHORNE LUMBER CO., Inc., et al., Defendants.

No. 64 Civ. 1824.

United States District Court S. D. New York.

February 2, 1967.

COPYRIGHT MATERIAL OMITTED

Edward R. Downing, Gabel & Markey, New York City, for plaintiffs.

Dougherty, Ryan, Mahoney & Pellegrino, New York City, for defendants Hawthorne Lumber Co., Inc., Anthony J. Garcia, Ernest B. Fontan, Joseph H. Linden, F. J. Scarano, and Anita I. Garcia.

Bigham, Englar, Jones & Houston, New York City, for defendant Hartford Fire Ins. Co.

Appleton, Rice & Perrin, New York City, for defendant, Barclays Bank, Ltd.

OPINION

MANSFIELD, District Judge.

In June 1964 plaintiffs, the master and crew of a tug, brought this diversity suit for $4,000,000 damages, alleging that in January 1962 they were wrongfully arrested, tried and imprisoned in Honduras as a result of a false affidavit, warrant and complaint instigated by the defendants. Certain defendants now move for summary judgment pursuant to Rule 56, F.R.Civ.P., on the ground that the action is barred by the applicable statute of limitations. The defendant Hartford Fire Insurance Co. ("Hartford" herein) also moves on the ground that there is no genuine issue with respect to its lack of connection with any of the acts that are the subject of the complaint. The essential facts, as alleged in the introductory paragraphs of the complaint, are as follows:

On January 6, 1962, plaintiff Quigley signed on as the master, and the other plaintiffs as members of the crew, of the tug Southeastern No. 5, owned by defendant Andersen's Marine, Inc., for a voyage from Key West, Florida, to Honduras in order to tow the S. S. Tropic Sea and her cargo of lumber from Honduras to Kingston, Jamaica. Plaintiffs thereupon proceeded in the tug to Honduras and after being assured that the S. S. Tropic Sea had been duly cleared (although it had developed a 30° list) towed it to Kingston, after which they returned on January 21, 1962 to Honduras where they were arrested by the "Army Captain of the Port" and five militia men, who "presented to Captain Quigley an affidavit signed on behalf of the Hawthorne Lumber Company of Hawthorne, New York, and a Warrant of Complaint issued by the local court * * * which charged the Master and crew with piracy of the TROPIC SEA and robbery of the cargo of lumber laden thereon, which plaintiffs had towed" to Kingston as instructed by the tug's charterers, with the approval of the master and owners of the Tropic Sea.

The complaint next alleges that the plaintiffs then "were arraigned before a Judge and the charges and warrant were read in the District Court of Puerto Cortes by an interpreter" in the presence of defendant Trochez, who is described as the legal representative of the defendants, and the defendant Guillermo Alvarado, who is described as the "District Attorney of the General Procuring Office of the Republic". The complaint further alleges that on January 30, 1962 plaintiffs were called before the judge who found them guilty as charged; and that upon appeal the appellate court on March 24, 1962, reversed their conviction and exonerated them of the charges against them, the plaintiffs thereupon being released from jail returning to Florida in the tug on March 30, 1962.

The complaint fails to state the connection of each of the defendants with the alleged false arrest, trial and imprisonment of the plaintiffs, other than to claim that it was as a "result of the Affidavit, Warrant and Complaint of defendants * * *".

After the foregoing introductory allegations of fact, plaintiffs allege five "causes of action". The first is that

"Plaintiffs were * * * arrested and subsequently jailed as a result of the false Affidavit, Warrant and Complaint of defendants wherein it was intentionally, knowingly and willfully alleged that plaintiffs were charged with Piracy and Robbery without any grounds * * * and with premeditated intent and malice * * *."

The second "cause of action" claims that the affidavit filed by defendants was an "abuse of process".

The third cause of action alleges:

"Plaintiffs * * * were arrested * * * pursuant to an Affidavit, Complaint and Warrant which was procured illegally by the defendants herein, which * * * were based on a misrepresentation of facts which were intended and resulted in the illegal and forceful detention of plaintiffs * * *."

The fourth cause of action alleges that

"A Judicial Proceeding * * * was instituted, instigated and continued by defendants without probable cause, * * * basis or foundation in fact and with * * * malice * * *."

The fifth cause of action alleges a conspiracy to commit the foregoing acts.

All of the defendants, with the exception of Alvarado and Davis, who apparently have not been served, filed answers denying the material allegations of the complaint. In addition all moving defendants except Hartford pleaded the statute of limitations as an affirmative defense. By stipulation the action was dismissed as to the defendant Barclays Bank, Ltd. In 1964 Hartford's motion to dismiss the complaint for failure to state a claim on its face against Hartford was denied by Judge Levet of this Court in an opinion dated September 28, 1964, on the ground that although the complaint did not "allege specifically what defendant Hartford did" it gave notice of the general transaction and acts complained of, which was sufficient to preclude dismissal for failure to state a claim on its face, since particulars could be obtained by Hartford through discovery procedures.

Although the complaint alleges that the acts complained of took place in Honduras, all parties appear to take the position that the elements of the claims asserted shall be governed by New York law. In any event the New York Statute of Limitations governs if it is shorter than that of the place where the events giving rise to the causes of action occurred. N.Y.CPLR § 202 (1963). Defendants contend that since the causes of action allegedly accrued in January or March of 1962 and the action was not commenced until June of 1964, it is barred by the one-year statute of limitations found in § 215 CPLR (1963), which applies to actions for false imprisonment, malicious prosecution, libel, slander and false words causing special damages. The causes of action herein alleged, however, accrued prior to September 1963 when the N.Y.CPLR went into effect, so that the applicable statute of limitations must be determined according to § 218 CPLR, which provides that where a cause of action accrued prior to the effective date of the new Act

"The time within which an action must be commenced shall be the time which would have been applicable apart from the provisions of this article, or the time which would have been applicable if the provisions of this article had been in effect when the cause of action accrued, whichever is longer."

Since the Civil Practice Act prescribed different periods of limitation according to the type of action (e. g., 2 years for false imprisonment and malicious prosecution suits (§ 50, Civil Practice Act), 1 year for libel or slander suits (§ 51, Civil Practice Act), 3 years for actions for personal injury except in a case where a different period is expressly prescribed (§ 48, Civil Practice Act)), it becomes necessary to determine the nature of the claims asserted in the present complaint. In doing so we are guided by certain fundamental principles. The first of these is that where a plaintiff has available to him several remedies for the same wrongful conduct, he may elect which one to pursue and gain the benefit of the statute of limitations applicable to it. Dentists' Supply Co. of New York v. Cornelius, 281 App.Div. 306, 119 N.Y. S.2d 570, affd., 306 N.Y. 624, 116 N.E.2d 238 (1953). The classic example is the option accorded a plaintiff to assert a personal injury claim against a seller either by way of breach of warranty or negligence. A plaintiff may not, however, avail himself of the longer statute of limitations applicable to a specific remedy merely by characterizing his action as one for such relief unless the facts alleged in the complaint disclose that it falls within such category. As the court stated in Carr v. Lipshie, 8 A.D.2d 330, 187 N.Y.S.2d 564 (1st Dept. 1959), affd., 9 N.Y. 983, 218 N.Y.S.2d 62, 176 N.E.2d 512 (1961), "it is the general rule that in `applying the statute of limitations we look for the reality, and the essence of an action and not its mere name'" citing Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902, 114 A.L.R. 521 (1937); Gottfried v. Gottfried, 269 App.Div. 413, 56 N.Y.S.2d 50 (1945).

Applying the foregoing principles to the present case, it is clear that the complaint sets forth a conventional claim of malicious prosecution. See Burt v. Smith, 181 N.Y. 1, 73 N.E. 495 (1908); Prosser, Torts 645-62 (2d ed. 1955). An essential element of each cause of action in the complaint is the claim that the defendants, through use of a false affidavit and warrant, without probable cause, and with malice, instigated judicial proceedings that resulted in the wrongful arrest and incarceration of the plaintiffs. Each cause of action uses words of art associated with claims of malicious prosecution, false imprisonment or abuse of process. The Note of Issue filed by plaintiffs' counsel on January 22, 1966 described the action as follows:

"The specific nature and object of the action:

"An action by American merchant seamen against defendants for damages for false arrest, charge of piracy and robbery without any grounds, false imprisonment, malicious prosecution, abuse of process and conspiracy under the general maritime and civil law."

The specific characterization of the action in conventional terms without mentioning "prima facie tort" confirms the Court's conclusion as to...