4 Abb. Pr. 375 | N.Y. Sup. Ct. | 1857
—I can see no good reason for requiring the plaintiff to set forth in his complaint the bills, or the purport of the bills, pending before the Legislature, and referred to at the commencement of the alleged libellous matter set forth in the second cause of action. The libellous matter in that count, or cause of action, is that which follows the word “ prostitutes and it depends upon that word, and not upon the previous word “ designs.” It seems to me the reading of the sentence should clearly be, that the plaintiff prostitutes the City Court to be the tool, &c., not that he designs it to be the tool, &e. It does not seem to me to be the natural or proper construction of the charge
It may be added, that the motion as to the second cause of action seems also to be unnecessary. The sentence itself shows that the acts which it is asked that the plaintiff be compelled to set out in his complaint, had been previously referred to by the defendant in the article from which this sentence is an extract. They are spoken of, as “ those acts,” meaning, evidently, acts previously described. If so, they will be known with sufficient certainty upon the trial. For the general rule is, as was
The second branch of the motion relates to the third cause of action set forth in the complaint. There can be no doubt that this count would have been defective according to the law as it stood before the Code, and as it was laid down in the case of Miller v. Maxwell (16 Wend., 9).
In that case it was held, as it had been often held before, that where a publication, in its nature libellous, does not on its face point to any particular individual as the person libelled, the person bringing suit on account of such publication, to maintain his action, must allege, by way of inducement, such extrinsic facts and circumstances as that when read in connection with the libellous publication, and the inuendoes connecting the publication with the introductory matter, the conclusion will be inevitable in the mind of the reader that the plaintiff is intended to be slandered.
The charge counted on in .this third cause of action is precisely of this character. It does not refer to the plaintiff by name. •It does not point to any particular individflal. At common law, averments must have been added to show the application of the charge to the plaintiff; but by section 164 of the Code this rule is changed, and for the very purpose of dispensing with these averments. It is now not necessary, in an action for libel or slander, to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff is bound to establish, on the trial, that it was so published or spoken. In Pike v.Van Wormer (5 How. Pr. R., 174), it was said that this section was enacted in order
So far as the second branch of the motion demands an explanation of the meaning of the words charged as libellous, it stands upon a different footing. The rule on that subject is not affected by section 164 of the Code. Wherever it was necessary before the Code to aver extrinsic facts to show the meaning of the alleged defamatory matter, it is necessary still (see cases cited above). But such averments were never necessary when the words were actionable .in themselves; that is, when they conveyed a clear and direct imputation of a slanderous character. It was only when the words were ambiguous, that they were to be aided by averring extrinsic facts.
If the application of the words charged in the third count to the plaintiff be, as it must be, taken as sufficient, I think a perusal of the count will show that there is no ambiguity in the words used, and no want of certainty in respect to the imputation intended to be conveyed.
The motion must be denied, with $10 costs.