On motion for involuntary dismissal.
This is a motion by defendant for an involuntary dismissal after plaintiff completed presentation of his evidence on all matters other than the wealth of defendant for purposes of punitive damages (R.R. 4:42-2) in an action for malicious abuse of process.
The complaint in six counts alleged causes of action for (1) false arrest, (2) malicious prosecution, (3) malicious abuse of process, and three counts of conspiracy to commit the same torts. The counts for false arrest and conspiracy for the same were barred by the statute of limitations. Earl v. Winne , 14 N.J. 119 (1953). At the opening of the trial the action for malicious prosecution and the remaining conspiracy counts were dismissed on motion of the plaintiff. Thus, the action is on the third count of the complaint for malicious abuse of process.
The complaint alleges that the plaintiff on May 1, 1946 while campaigning for public office made statements critical of the defendant, then Bergen County Prosecutor identified with an opposing faction of plaintiff's political party. Following the statement and its publication in a local newspaper the plaintiff was questioned by the defendant at the prosecutor's office. Then a criminal complaint was lodged against the plaintiff by a detective of the prosecutor's staff. The plaintiff was arrested thereunder, released on bail, and subsequently on May 11, 1946 indicted by the Bergen County grand jury for criminal libel for the statement he allegedly made and caused to be published. The alleged statement is quoted in the indictment, made a part of the complaint, as
follows: "And Winne's detective, Chief Michael Orecchio, is contact man for Winne with the gambling system."
Plaintiff alleges wrongful arrest, detention and imprisonment with malice and without probable cause, personal humiliation, and personal injury to his credit and reputation and expenses incurred for his defense and liberation.
The complaint alleges the defendant personally or through his emissaries demanded and compelled the plaintiff to sign a retraction of the statement he made, promising to nolle prosse the indictment within 30 days, but on the contrary held said indictment open to obtain release of plaintiff's right of action against defendant for false arrest and malicious prosecution, until June 29, 1949, when the indictment was nolle prossed.
At the pretrial conference on September 30, 1954 the specification of the legal issues raised by the pleadings to be determined at the trial on the cause of action for malicious abuse of process were limited to two (R.R. 4:29-1):
1. Was there an extortion of the retraction by use of the indictment?
2. Did the defendant omit to nolle prosse the indictment for the purpose of holding the indictment over plaintiff's head to prevent criticism of the defendant by plaintiff, and does that legally constitute an abuse?
At the trial the plaintiff was limited to proofs of these issues and was not permitted, on motion after opening to the jury on the issues stated in the pretrial order, to amend the order to include the additional issue whether the indictment was kept open to induce or extort from the plaintiff releases of civil rights of action against the defendant. Such an amendment, creating a new issue at such time, after the issues had been settled by agreement of the parties at the pretrial conference, would have constituted a manifest injustice to the defendant, where such issues were pleaded in the complaint but excluded from the issues for trial by the pretrial order. ...