(dissenting): . The plaintiff seeks to recover against these defendants the damages that lie has sustained by reason of the defendants having unlawfully, wickedly and maliciously caused the plaintiff to be imprisoned and deprived of his liberty upon a false charge, and having maliciously, wickedly and unlawfully abused the process of the Supreme Court of the State'of New York, in and for the county of Kings, for that purpose, and to oppress and injure the plaintiff and to restrain him of his liberty, and to ruin the plaintiff in his good name and reputation by reason and by means of false and malicious -statements and of said false and malicious arrest and imprisonment and prosecution of the plaintiff, and also the damage *364sustained by reason of certain slanderous Statements made by the defendants Davies, Gorman, Green, and Oppénheim. . It is these wrongful acts of -the defendants that the complaint alleges have caused the plaintiff damages for which he seeks to recover. The complaint alleges a conspiracy between the defendants to injure the plaintiff, and that these wrongful acts were done in pursuance of that combination ; but, as I read the complaint, the wrongs of which the plaintiff .complains, and which have caused him the damage for which he seeks to recover, are the malicious prosecution or false imprisonment and the various slanders set forth in the complaint.. The conspiracy of itself caused the plaintiff no damage, and would not sustain -an action for damages. No matter how much these defendants combined or conspired to injure the plaintiff, so long as they did no act which injured him, no cause of action would lie, but-the right to sue is based upon the wrongful acts, and the action is to recover damages caused by false imprisonment and malicious prosecution and by slanders. When the case was before this co.urt on the former appeal (83 App. Div. 216) the only allegations in the complaint were those of false imprisonment or malicious'prosecution, and there was nothing then said that would justify tlié plaintiff in combining in one complaint a cause of action for malicious prosecution or false imprisonment and for slander, and it is conceded in the prevailing opinion that if this action be treated as based upon false imprisonment or malicious prosecution and slander, the complaint is demurrable. (De Wolfe v. Abraham, 151 N. Y. 186.) The fact that a conspiracy is made a crime by section 168 of the Penal Code does not give a cause of action for the conspiracy where - no overt act is committed, or where no wrongful act has followed the conspiracy or combination. As I view it, it is the unlawful act that gives the cause of action, and upon which the action is based, and, as was said -by Judge Cooley in his work on Torts (2d ed. pp. 143, 144), cited in the prevailing opinion : “ The' damage is the gist of the action, not the conspiracy; * * *. ■ When the mischief is accomplished - the conspiracy becomes important, as it affects the means and measure of redress; for the party wronged may look beyond the actual participants in committing the injury,; and join with them as defendants all who conspired to accomplish it. . The significance of the conspiracy consists, therefore, in this: *365That it gives the person injured a remedy against parties not ■otherwise connected with the wrong.” If in this complaint there were no allegations of conspiracy or combination, there would be alleged several good causes of action against the several defendants, but these causes of action could not be joined in the samé complaint. The allegations of conspiracy or combination are sufficient to make all of the defendants liable for the unlawful acts of each in pursuance of the conspiracy or combination, but I think the cause of action is based upon the wrongful act causing damage, and not upon the conspiracy or combination; and we must determine whether the causes of action based upon the wrongful acts of the defendants may be united in the same complaint. It is quite clear that there cannot be. Section 484 of the Code of Civil Procedure expressly provides that it must appear upon the face of the complaint that all of the causes of action so united belong to one of the foregoing subdivisions of the section. Now subdivision 3 provides for a cause of action for libel or slander, and subdivision 2 provides for a cause of action for personal injuries, except libel, slander, criminal conversation or seduction. An action for libel or slander, therefore, cannot be joined with a cause of action for false imprisonment or malicious prosecution. If this case should be brought on for trial upon this complaint, and the plaintiff should fail to prove the combination or conspiracy, but should prove the wrongful acts done, the false imprisonment or malicious prosecution and the slanders uttered- by the various defendants, he-would still be entitled to have the question submitted to the jury and a separate verdict rendered against each of the defendants who had been guilty of the wrong. The complaint contains allegations sufficient to sustain these separate and independent causes of action, and yet, if the action is, as claimed in the prevailing opinion, a single cause of action based upon the combination or conspiracy to injure the plaintiff’s business, the plaintiff, upon failure to prove the conspiracy or combination, should be nonsuited.
I think that causes of action were improperly united, and that the demurrer should have been sustained.
Interlocutory judgment overruling demurrer affirmed, with costs, with leave to defendants to withdraw demurrer and to answer on payment of costs in this court and in the court below.