Opinion
June 27, 1963
Order, insofar as appealed from, entered on February 26, 1963, unanimously modified on the law by striking the 13th cause of action; and, as so modified, affirmed, without costs. The 13th cause of action alleges a conspiracy to injure the plaintiff in its business by publishing the alleged libel which is the subject of the preceding causes of action. Assuming that the publication alleged to be libelous is so in fact, a conspiracy to publish adds nothing to the actual publication. If, however, the publication is found to be not otherwise actionable, the conspiracy could, with the addition of other facts, be the basis of an action for prima facie tort. The allegations of the cause of action do not contain the necessary elements.
Concur — Botein, P.J., Stevens, Steuer, Bergan and Bastow, JJ.