119 N.Y.S. 1010 | N.Y. App. Div. | 1909
The action is for libel, and, on motion of the defendant, many. allegations of the complaint were stricken- out as irrelevant.
It is unnecessary to analyze the .complaint. It is sufficient for us to say that we are of the opinion that the allegations stricken out were material as either tending to show actual malice or in aggravation of damages.
The plaintiff had a right to aver, if he saw fit, that the defendant was apprised by him of the true state of affairs with respect to
On the trial the plaintiff would have the right to prove, and it was, therefore, proper for him to allege, the position which he held at the time the alleged libel was published for the purpose of showing his standing and prominence in the community as bearing upon the hurtful tendency of the libel and the general damage to which he was exposed. (Morey v. M. J. Association, 123 N. Y. 207; Saunders v. Post-Standard Co., 107 App. Div. 84.)
The allegations stricken • out being either necessarily averred or proper to be introduced as proof by the plaintiff, the defendant could not be aggrieved by permitting them to remain in the complaint. (Younger v. Duffie, 26 Hun, 442.) If allegations of a pleading have any bearing on the subject-matter of the litigation they should not be stricken out as irrelevant atid redundant. (Dinkelspiel v. N. Y. Evening Journal Co., 91 App. Div. 96.)
It follows, therefore, that the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, Laughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs .and disbursements, and motion denied, with ten dollars costs.
