
    Continental Confections, Inc., Plaintiff, v. S & M Sugar Company et al., Defendants.
    Supreme Court, Special Term, Nassau County,
    December 8, 1959.
    
      Luden Nemser for S & M Sugar Company, defendant.
    
      Halperin, Morris, Granett $ Cowan for plaintiff.
   Fred J. Munder, J.

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 overcharge. 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.  