33 A.D. 563 | N.Y. App. Div. | 1898
This action was brought for the purpose of recovering damages for an alleged malicious prosecution. The complaint alleges, among other things, “ That the facts of this plaintiff being so prosecuted and arrested, and of his being, charged by the defendants and through, their procurement with having been guilty of fraud, false and fraudulent representations were extensively published in public newspapers through the procurement of defendants, as plaintiff believes, and with malicious intent to injure plaintiff’s good name and fame in the community and among plaintiff’s customers, clients and com nections in the drug importing and jobbing business,” and “ that in consequence of his arrest and imprisonment and of the malicious prosecution so instituted by defendants, many persons, hearing of said prosecution and of plaintiff’s arrest,, and. supposing the plaintiff to have been guilty of fraud, false and fraudulent representations,, have refused to do business with plaintiff or to trade with him in aud about the said business, and! his credit and good name have been greatly injured, to his damage twenty-five thousand dollars.”
. The defendants, answering, make a general denial of the, charges contained in the complaint, and set up as a defense advice of counsel, at the same time demanding a bill of particulars as to. the “ names of the newspapers in which, and the dates upon- which, it is claimed that it was extensively published, through the procurement of the defendants,” etc;, ánd “ The names of the persons who are claimed to have refused to do business with the plaintiff or trade with him by reason of the alleged prosecution and arrest,” and, “ The names of the persons with whom it'is claimed the plaintiff’s credit was injured,” etc. On the plaintiff refusing, to comply with this demand, a motion was made at Special Term for- a bill of par
We are of opinion that in thus disposing of the motion for a bill of particulars, the court was in error. It is true, of course, that the defendants know whether or not they procured the publication of the fact of the arrest of the plaintiff, but they have no information as to the' claim of the plaintiff as to what newspapers may have published the report of the arrest at the procurement of the defendants. The Code of Civil Procedure provides (§ 531) that “ The court may, in any case, direct a bill of the particulars of the claim of either party to be delivered to the adverse party,” and it is the claim of the plaintiff which the defendants seek to know. They have a right to know in which particular public newspapers the plaintiff claims that the report was published upon the procurement of the defendants ; otherwise they would be obliged, for their own safety, to have witnesses at hand from all of the public newspapers of the country-in order to meet the evidence which might be produced upon the trial of the cause. If the plaintiff has any grounds for believing that the defendants procured the publication of the fact of his arrest, he must know what particular newspapers published the fact upon the procurement of the defendants, and it is only just that the defendants should be informed as to the claim of the plaintiff in respect to this part of the complaint, that they may know what they are to meet upon the trial, and that they may have an opportunity to collect their evidence and present it to the court.
“ Of course,” say the court in the case of Justum v. Bricklayers’ Union (78 Hun, 503), “if the defendants are innocent of any wrong of the character charged against them, they know their innocence and can assert it; but they' cannot, for that reason, know what particular acts of wrong or items of damage the plaintiff will attempt to prove, and of these particulars they have a right to be informed.” To the same effect is the case of Post-Express Printing Co. v. Adams (55 Hun, 35), where the court say: “ If the plaintiff or its officers know, of their own knowledge or are informed, •as they state and verify in their complaint, that business patrons of
It is clear, then, that the defendants, in so far as the allegations in reference to the publication aró concerned, are entitled to the bill of particulars asked for. There seem to be equally good reasons for supporting the second demand of the defendants, the third being waived. While there may be some question whether the pleadings are intended to demand special damages, it is clear that if the plaintiff is allowed to introduce evidence of the fact alleged in his complaint, that by reason of the arrest and imprisonment many persons have refused to do business with plaintiff or to trade with him, the evidence would tend to induce larger damages, than those growing out of the mere fact that the defendants were found guilty of - malicious prosecution. The averment is, therefore, in the nature of special damage, and if the defendants are to meet this upon the trial of the action, they have a right to know who the persons are who have been deterred from trading with the plaintiff by reason of the arrest and imprisonment alleged in the complaint.
“ If the plaintiff proposes to claim special damages,” say the court in the case of Post-Express Printing Co. v. Adams (supra), “ that is, loss of patronage in particular instances, either in advertising or in its subscription list, it must, of course, give a bill of ¡particulars of such loss. If the intention was only to allege general damages, as where, in actions of slander or of libel, injury is alleged to reputation and to feelings, then no more particular specification of the injury is required. In other words, if the plaintiff intends to give evidence of particular instances of loss, occasioned by_ the wrongful acts of the defendants, those instances must be specified by a bill of
In the case of Roberts v. Safety Buggy Co. (supra) the court say : “ On the other branch of the motion, namely, that relating to the particulars of the damage sustained by the plaintiffs, we think the motion, should also have been granted. The allegation that by reason of the violation of the contract by the defendant, the plaintiffs have been prevented from selling the vehicles bought by them, is in the nature of’ special damage, and under such circumstances a bill of particulars of the damage is generally allowed.” The same doctrine was maintained in the case of Kraft v. Dingee (38 Hun, 345). The plaintiff alleged' injury to certain buckskins by using oil furnished by the defendant, and that he had, among other injuries suffered thereby, lost customers, “ piano manufacturers to whom he had been and was accustomed to sell said skins, and who purchased the same to be used in their business of manufacturing pianos.” The defendant demanded a bill of particulars, and the court, in reversing ■the order denying the motion, say : “ Whether the customers left the plaintiff, and whether they did so by reason of the bad leather sold to them by the plaintiff, and whether the leather was tanned by the oil in question, will probably all be questions for the jury. The defendant is entitled to this information so as to prepare for trial. If he waits until the names are produced' on the trial, it will then be too late to make what might be considered a satisfactory inquiry into the facts. It is easy fdr the plaintiff to give the particulars asked for'. If he lias his-account of loss made up sufficiently to put in a complaint,' he must have the names and residences of the ■customers lost,.through whom the loss was occasioned.” ‘
The case at bar is clearly within the' rule laid down in the case of Post-Express Printing Co. v. Adams (supra), and. as the ends of justice 'demand that the defendants should have the information which' they seek, that they may, without’ unnecessary burden, be prepared to meet the averments of the-plaintiff on the tidal of "the action, the order appealed from '.should be reversed, with costs.
All concurred.
Order reversed, with ten dollars costs and disbursements.