(dissenting). I agree with all the statements and observations in the opinion of the court except the view expressed that the allegations of the complaint, given the benefit of all favorable inferences, add up to a cause of action.
A complaint based upon the alleged intentional infliction of temporal damage would have to show that the alleged damage stemmed from wrongful action of the defendant. Malicious intent alone without wrongful action would not constitute a cause of action. In my view, this complaint fails to show any wrongful action by defendant Winchell although it attributes a malicious intention to him. Indeed, it seems clear that any allegation of wrongful action is negatived by the allegations showing insulating action taken by governmental authorities upon their own authority and responsibility which occasioned the damage complained of.
There are only four allegations of operative misconduct on defendants’ part. The first is the alleged instigation of investigations of plaintiff by various government agencies. While it is alleged the investigations were “ baseless ”, nevertheless it is made clear that defendant consented to an injunction against his activities. Having entered into this solemn agreement with the Attorney-General of the State of New York, I think that plaintiff is not entitled to a judicial review of it or to claim that it was unwarranted or baseless or initiated maliciously by plaintiff.
*344The second specified item of wrong is a criminal action against plaintiff “ influenced ” by Winchell. Again, it is to be noted that this action was taken by governmental authority and there is no indicated lack of basis for it. On the contrary, plaintiff was convicted. Although there was a reversal, it was not upon the ground that the action was unfounded, but rather on account of action of the trial judge.
The third specification is of a similar nature, alleging that Winchell registered false complaints against plaintiff with the police department and the commissioner of licenses, but again the damage to plaintiff resulted from these authorities taking away plaintiff’s pistol permit and private detective’s license. There is nothing to suggest that they did not act upon due inquiry and in the proper exercise of their duty and on their own responsibility.
The fourth specification of slander is wholly unsupported by any facts.
If we sustain this complaint we would involve the court in the untenable position of trying out in private litigation the public acts of the Attorney-G-eneral, District Attorney, police department and commissioner of licenses of the City of New York. It is not alleged that these authorities were in any conspiracy with Winchell or even misled or imposed upon by him. There is nothing in the complaint to show that they did not make a critical study of any charges which Winchell may have lodged with them or did not fairly and properly reach the conclusion that the charges were sustained or did not act properly and responsibly in respect to plaintiff. The responsible action of public authorities cannot be turned into a cause of action against their informant by alleging that he was maliciously inspired.
The complaint gives sufficient indication that the action should not be entertained to warrant dismissal, without leave to amend.
Dobs and Botein, JJ., concur with Callahan, J.; Peck, P. J., dissents in opinion in which Cohn, J., concurs.
Orders modified in accordance with the opinion herein and, as so modified, affirmed. Settle order on notice. [See post, p. 794.]