[Download] "John Pagliarulo Et Al. v. Filippo Pagliarulo Et Al." by Supreme Court of New York ~ Book PDF Kindle ePub Free
eBook details
- Title: John Pagliarulo Et Al. v. Filippo Pagliarulo Et Al.
- Author : Supreme Court of New York
- Release Date : January 15, 1968
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 66 KB
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[30 A.D.2d 840 Page 840] The time to answer the complaint is extended until 20 days after entry of the order hereon. The complaint alleges in substance
that defendants maliciously brought an action to foreclose an equitable mortgage against the property of plaintiffs, that
said action terminated in favor of plaintiffs, and that the lis pendens filed in connection therewith was filed without probable
cause and without any factual or legal reason. The record shows that the action of which plaintiffs complain was terminated
upon the following agreement: "It is hereby stipulated and agreed by and between the undersigned attorneys for the parties
hereto that the above entitled action be and the same hereby is settled and discontinued on the merits without costs to either
party". The distinction between abuse of process and malicious prosecution is often overlooked: "A wrong usually referred
to as 'malicious abuse of process' is committed when the actor employs legal process in a manner technically correct, but
for a wrongful and malicious purpose to attain an unjustifiable end or an object which it was not the purpose of the particular
process employed to effect. It differs from malicious prosecution in that it is not necessary to show that the action in which
the process was used was without probable cause or that it terminated favorably to the plaintiff. The action is not for the
wrongful bringing of an action or prosecution, but for the improper use, or rather 'abuse,' of process in connection therewith"
(1 Harper and James, Law of Torts, 4.9, p. 330). In order for plaintiffs to maintain an action for malicious prosecution,
they must show the elements of malice, want of probable cause, and successful termination of the precedent action in plaintiffs'
favor. As concerns the latter element, the text states the following: "It is * * * necessary that the proceedings of which
the plaintiff complains should have terminated in his favor. No action can be maintained for malicious prosecution based on
proceedings which turned out to be well founded. This requirement applied to civil as well as to criminal proceedings. To
show a termination in his favor, the plaintiff must prove that the court passed on the merits of the charge or claim against
him under such circumstances as to show his innocence or non-liability, or show that the proceedings were terminated or abandoned
at the instance of the defendant under circumstances which fairly imply the plaintiff's innocence." (1 Harper and James,
4.4, p. 307.) The action of which plaintiffs complain was discontinued by agreement entered into by both parties to this action.
Under the circumstances, there was no such termination of the action which would give rise to a cause of action for malicious
prosecution (Levy's Store v. Endicott-Johnson Corp., 272 N. Y. 155; Halberstadt v. New York Life Ins. Co., 194 N. Y. 1). Therefore,
the cause sounding in malicious prosecution should be stricken from the complaint. Since the complaint fails to state a cause
for malicious prosecution, the question is whether there is a cause for abuse of process. "The gist of the action for abuse
of process lies in the improper use of process after it is issued. To show that regularly issued process was perverted to
the accomplishment of an improper purpose is enough" (Dean v. Kochendorfer, 237 N. Y. 384, 390).