Opinion
March 31, 1959
Order unanimously modified, on the law, so as to dismiss the first cause of action, and, as so modified, affirmed, without costs. The acts alleged in the first cause of action do not constitute malicious prosecution or abuse of process. In order to avoid discouraging free resort to the courts for the resolution of controversies, considerations of public policy have resulted in restricting the instances in which the mere bringing of a lawsuit by one party lays the foundation for the bringing of another lawsuit by the one sued. The minimal requirements of a cause of action for malicious prosecution or abuse of process cannot be bypassed merely by the expedient of labeling the cause of action as one in prima facie tort, where, as here, there appears to have been sufficient self-interest on the part of defendant to negative malice, the essential ingredient of a cause of action for prima facie tort ( Bono Sawdust Supply Co. v. Hahn Golin, 3 A.D.2d 221). The second cause of action sufficiently alleges the elements of a cause of action for malicious prosecution.
Concur — Botein, P.J., Breitel, Rabin, M.M. Frank and Stevens, JJ.