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Brandt v. Winchell

Appellate Division of the Supreme Court of New York, First Department
Jun 14, 1955
286 AD 249 (N.Y. App. Div. 1955)


286 A.D. 249 141 N.Y.S.2d 674 Joseph L. BRANDT, Plaintiff-Respondent, v. Walter WINCHELL and John H. Teeter, Defendants, Impleaded with Elmer H. Bobst, Defendant-Appellant. Supreme Court of New York, First Department June 14, 1955.

          Clifton Cooper, New York City, of counsel (E. Raymond Shepard and George Ainsworth, Jr., New York City, with him on the brief; Baldwin, Todd, Herold, Roses&sCooper, New York City, attorneys), for defendant-appellant, Elmer H. Bobst.

         Gilbert H. Weil, New York City, for plaintiff-respondent (Alfred T. Lee, Brooklyn, and Kenneth E. Bergin, New York City, with him on the brief).

         Before PECK, P. J., and COHN, CALLAHAN, BREITEL and BOTEIN, JJ.

         PER CURIAM.

         When the prior complaint was before this Court, 283 A.D. 338, 127 N.Y.S.2d 865, we dismissed, with leave to replead, indicating the necessity for plaintiff to state by way of separate causes of action what, if any, traditional torts he complained of, and also to allege any prima facie tort by way of a distinct cause of action.

        Plaintiff thereupon served the present amended complaint, which is again attacked for insufficiency, this time by defendant Bobst only. The amended complaint proceeds solely on the theory of prima facie tort. As we previously noted, damage is an essential element in a cause of action for prima facie tort and must be pleaded specially, for it consists of injury due to loss in plaintiff's occupation or business. See 283 App.Div. at page 342, 127 N.Y.S.2d at page 867.

        The amended complaint alleges only two items of special damage: (1) loss of salary of $200 a week paid plaintiff by Cancer Welfare Fund, Inc., and (2) loss of plaintiff's license to act as a private detective.

         On the prior appeal the majority did not consider or discuss possible insulating effects of the injunction issued on complaint of the Attorney General or the action of public officials on plaintiff's damages, for the reason that it was impossible to tell whether such damages would be general or special until plaintiff disclosed whether or not his claims for injury would be based on the traditional torts.

         Now that the case involves only the prima facie tort and is limited to special damages, we agree that the injunction judgment obtained by the Attorney General and consented to by plaintiff would be a bar to the claim for loss of salary. The complaint concedes such judgment was obtained. Likewise, the complaint concedes that plaintiff's license as a detective was taken from him by the action of public authorities. Plaintiff has made no direct attack on the action cancelling his license, and he may not attack it collaterally in this action any more than he may attack collaterally the injunction obtained by the Attorney General on his consent.

         We have considered whether the plaintiff might recover at least nominal damage on his present complaint, but have determined that he may not because actual damage is an element of his case.

         The order appealed from should be reversed, with $20 costs and disbursements, and the complaint dismissed, without leave to replead.

         Order unanimously reversed with $20 costs and disbursements to the appellant, the motion granted, and the complaint dismissed without leave to replead, and judgment is directed to be entered in favor of the defendant-appellant dismissing the complaint herein with costs. Order filed.

Summaries of

Brandt v. Winchell

Appellate Division of the Supreme Court of New York, First Department
Jun 14, 1955
286 AD 249 (N.Y. App. Div. 1955)
Case details for

Brandt v. Winchell

Case Details

Full title:JOSEPH L. BRANDT, Respondent, v. WALTER WINCHELL et al., Defendants, and…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 14, 1955


286 AD 249 (N.Y. App. Div. 1955)
286 App. Div. 249
141 N.Y.S.2d 674

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