1 am unable to concur. The plaintiff brought this action against four defendants to recover damages alleged to have been sustained in consequence of their wrongful acts resulting in his arrest and temporary confinement in the police station in the city of Yonkers.
■The defendant Scheibel is alleged to be a police officer, who. arrested plaintiff for the violation of a city ordinance prohibiting the hawking and peddling of merchandise in the streets^ The defendant Lent is alleged to be a sergeant of police in charge of *801the station house at the time -plaintiff was brought there by Scheibel, who ordered the plaintiff searched and placed ill confinement. The defendant Woodruff is alleged to be a captain of police in charge of the police force of the city, who, -after being informed of the matters connected .with .the arrest of plaintiff and that he was a veteran of the Civil war selling under the authority of a State veteran’s license, refused to set the plaintiff at.-liberty -and continued his imprisonment. The - defendant Cooley is alleged to be a sergeant of police, and is charged with being “ maliciously instrumental in the procurement and continuance ” bf plaintiff’s imprisonment, with knowledge of the facts, and. with wrongful .-and malicious abusé of him while so imprisoned. * ■ .
The complaint alleges, in- separately numbered subdivisions, the separate act of each defendant, and that “ by reason - of the said joint and several acts of the several defendants, the plaintiff, from the hour of his said arrest-until about the hour-of nine a. m. on March-29, 1903, was wrongfully and unlawfully- deprived of his liberty and compelled to remain closely confined with"several other prisoners.” The 8th subdivision is as follows: “That as plaintiff is informed and believes, the acts of said defendants were wilful and concerted, and done either maliciously or knowingly in furtherance of some purpose, personal to one or more of said defendants.”
The defendants each demurred 15 the complaint- upon two grounds: First, that there was ah improper unity óf several causes of action, one being against the defendant Scheibel for false arrest or imprisonment on March 28, 1903, between the hours of seven and eight o’clock p. m. ; one against the defendant Lent for false imprisonment, at a later hour.; one against, the defendant Woodruff for continuing the imprisonment at a yet later hour, and one against the defendant Cooley for continuing the imprisonment on the next day, and for an assault, “ which said causes of action do not affect all of the said parties,” .and one cause of action for conspiracy and malicious prosecution as a, result, thereof. Second, that the. complaint does not state facts sufficient to constitute a cause of action. I think the disposition of these demurrers by the learned justice at Special Term was .correct. It is apparent that the theory of the plaintiff’s alleged cause, of, action is , a,,, conspiracy by and -between *802the defendants; In -the absence of a conspiracy, the separately alleged causes of .action dó jiot affect all of the parties ;• neither would be liable for the act of the others, and a 'demurrer by each defendant is properly interposed on the ground that there is a misjoinder of the causes of action. (Code Civ. Proc. § 488, subd. 7; Nichols v. Drew, 94. N. Y. 22.) It is no answer that a good cause of 'action is pleaded against each demurrant. ' .
To maintain an action for ■ conspiracy the plaintiff must -allege- and prove an agreement or concert of action of the defendants. In the complaint under consideration no facts are alleged showing an agreement or concerted- action in pursuance thereof by or between any of the defendants. The only relation shown between any of the acts is that they successively followed each other; , the ¡act of' .each defendant was separate and distinct' from that of each of the others; they are not so connected as to establish them to have been the result of any agreement'or concert of action, and are insufficient to constitute a.cause of action for a conspiracy. This condition is not relieved by the allegations contained in subdivision 8, which are only the conclusions of the pleader given without alleging any facts.
1 vote to affirm the interlocutory judgment, with costs.
Interlocutory judgment reversed as to the defendants Scheibel, , Lent and Woodruff, with costs to the appellants, and affirmed as to the defendant Cooley, with costs to the respondent.