Continental Confections, Inc. v. S & M Sugar Co.

This is a motion under subdivision 4 of rule 106 of the Buies of Civil Practice to dismiss the complaint as against the defendant S & M Sugar Company (hereinafter referred to S & M), on the ground that it does not state facts sufficient to constitute a cause of action.

Briefly, the complaint alleges that the defendant, Paddock, an authorized agent of the defendant, Procter & Gamble, with the latter’s knowledge and consent, conspired with S & M to induce the plaintiff to purchase, for its shortening requirements, a Procter & Gamble product through S & M at a price that would be represented to be the same as if purchased directly from the manufacturer, though in fact it would involve an *915overcharge. It is further alleged that the plaintiff was so induced on the false representations of the defendant, Paddock, and suffered damages to the extent of the overcharge.

These allegations set forth sufficiently a cause of action in fraud. The allegation of conspiracy on the part of S & M may be disregarded and a recovery had against that defendant on proof of its participation in the alleged fraud. Conspiracy to commit a fraud is not in and of itself a cause of action but, whether or not pleaded, proof of actual conspiracy may be received on the trial to connect a defendant with the actionable tort. (Green v. Davies, 182 N. Y. 499.)

Accordingly, I find the complaint herein to state facts sufficient to constitute a cause of action against the moving party.

Motion denied.

Submit order.