(dissenting). The complaint herein alleges in substance that the defendants, knowing that plaintiffs had never made or in any way dealt in certain patented articles, or infringed the patent, willfully and maliciously conspired together and caused to be instituted a suit for infringement against these plaintiffs in the federal courts, with intent to injure plaintiffs, and without any reasonable or probable cause, and that plaintiffs were put to- trouble and expense in defending, the suit, which was subsequently discontinued by the defendants. This complaint seems to me to set up a cause of action, whether it be called one for malicious prosecution by way of a civil action (see Burt v. Smith, 181 N. Y. 1, 5, 73 N. E. 495, 2 Ann. Gas. 576), or not, and whatever may be the amount of damage recoverable. The Burt Case appears to contain a later statement of the rule referred to in Willard v. Holmes et al., 142 N. Y. 492, 37 N. E. 480, and Paul v. Fargo, 84 App. Div. 9, 82 N. Y. Supp. 369.
The learned judge below, in his opinion, says that it is “conceded that this is an action based upon an abuse of process.” It is true that there arc some allegations in the complaint which would indicate that the pleader’s mind was not perfectly clear as to1 the cause of action pleaded, and that some attempt was made to' plead a cause of action for abuse of process. The complaint might be insufficient, if viewed solely in that light. Dishaw v. Wadleigh, 15 App. Div. 205, 44 N. Y. Supp. 207.
The order should be reversed, but, in view of plaintiffs’ attitude in the court below as to the cause of action pleaded, without costs.