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Cabakov v. Thatcher

Decided: October 1, 1953.

ABRAHAM CABAKOV, PLAINTIFF-APPELLANT,
v.
CATHERINE R. THATCHER AND JOHN THATCHER, DEFENDANTS-RESPONDENTS



Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

Plaintiff appeals from the order of the Law Division, Warren County, dismissing his action "because the complaint fails to state a claim against defendants upon which relief can be granted."

The first count of the complaint alleges a course of conduct and acts of malicious prosecution as overt acts of a conspiracy by the defendants to unlawfully acquire lands belonging to plaintiff, as well as to deprive him of his liberty and otherwise injure him. In the second and third counts plaintiff incorporated by reference the allegations of the first count and specified certain acts of malicious prosecution.

The plaintiff contends that the complaint sufficiently states a claim upon which relief may be granted either in conspiracy or malicious prosecution; that the gravamen of the complaint is malicious prosecution and the overt acts forming a part thereof are not barred by the statute of limitations, and that the trial court erred in declining to allow plaintiff to amend his complaint. The defendants advance contrary arguments.

It is important to note the difference between civil and criminal conspiracy. In criminal conspiracy "the agreement or conspiracy was the gravamen of the offense * * * in civil actions, the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains." Van Horn v. Van Horn , 52 N.J.L. 284, 286 (Sup. Ct. 1890), affirmed 53 N.J.L. 514 (Sup. Ct. 1891). "The essence of the (civil) action, it seems, is not the conspiracy, but the damages done to the plaintiff * * *." Louis Kamm, Inc., v. Flink , 113 N.J.L. 582, 592 (E. & A. 1934). Cf. 11 Am.

Jur., Conspiracy, sec. 53, p. 584; 15 C.J.S., Conspiracy, sec. 16, p. 1027. As stated by Judge Francis in Mayflower Industries v. Thor Corp. , 15 N.J. Super. 139, 151 (Ch. Div. 1951), affirmed by Supreme Court on Judge Francis' opinion, 9 N.J. 605 (1952):

"In Potts v. Imlay , 4 N.J.L. 382 (Sup. Ct. 1816), it was declared that an action for malicious prosecution could not be maintained for prosecuting a civil suit unless the defendant in that suit was 'arrested without cause and deprived of his liberty or made to suffer other special grievance different from and superadded to the ordinary expense of a defense.' This rule has never been changed or criticized and it still represents the law of this State. Bitz v. Meyer , 40 N.J.L. 252 (Sup. Ct. 1878); Schneider v. Mueller , 132 N.J.L. 163 (E. & A. 1944)."

Accordingly, the gist of the complaint here is not conspiracy, but the damage done plaintiff, as aggravated by defendants' conspiracy.

The wrong of which the plaintiff complained was defendants' malicious prosecution to plaintiff's damage. As stated in Schneider v. Mueller , 132 N.J.L. 163, 166 (E. & A. 1944):

"* * * in an action for malicious prosecution our law is settled that such action cannot be maintained for prosecuting a civil suit in a court of common law having competent jurisdiction by the party himself in interest unless the defendant in that suit has, upon such prosecution, been arrested without cause and deprived of his liberty or made to suffer other special grievance different from and superadded to the ordinary expense of his defense. See Potts v. Imlay , 4 N.J.L. 382; Bitz v. Meyer , 40 Id. 252."

The plaintiff's complaint discloses that the elements aforementioned were alleged in the charge against the defendants, together with the recitation of facts indicating malicious institution of criminal legal proceedings, without probable cause, resulting favorably to the plaintiff. The alleged wrongful acts having been committed by the combined action of more than one ...


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