Garrison v. Sun Printing & Publishing Ass'n, 129 N.Y.S. 448

Garrison v. Sun Printing & Publishing Ass'n

129 N.Y.S. 448 | N.Y. App. Div. | 1911

Dowling, J.:

This action is brought to recover damages for the publication of a-libel. Defendant has moved for an order requiring plaintiff to separately state and number each of two causes of action *429claimed to be set forth in the amended complaint, that it may comply with the provision of section 483 of the Code of Civil Procedure. From a denial of that motion the appeal is taken. It seems to us that the pleading does set forth two causes of action, though stated as one. After setting forth his marriage it alleges (®[ IV) that the article complained of was published “of and concerning plaintiff and his said wife and plaintiff’s marital relations; ” that the “said article concerning plaintiff and his said wife and plaintiff’s marital relations was false, scandalous, malicious and. defamatory of plaintiff” (®[ *VI); that by reason of the publication “the neighbors, friends, associates and acquaintances of plaintiff and of his said wife,” had, among other things, been caused to believe that he was the husband of a woman who had been guilty of adultery and .“to suspect and believe and to still suspect and believe that plaintiff’s said wife was subject to the pains and penalties of the laws of the State of New Jersey and of other States against persons guilty of such offenses; and plaintiff and his said wife have been and still are shunned and avoided by their neighbors, friends, associates and acquaintances and by good and worthy persons and citizens who have refused and do still refuse to have any friendship, transaction or business dealing with plaintiff as they were before used and accustomed to have, and otherwise would have had; whereby plaintiff has been and still is greatly injured in his good name, fame and credit and plaintiff’s said wife was shocked and distressed and became and is now ill and sick and was and is now physically and mentally disordered and distressed and for a long time was wholly unable to perform her duties as plaintiff’s .housekeeper and as plaintiff’s wife, and is not now, and as plaintiff alleges, upon information and belief, will not for a long time to come be as well, strong and able to perform her said duties as before the printing, publication and circulation of said false, scandalous, malicious and defamatory article and the plaintiff has been deprived of the services of his said wife ” (1 VII); and that, by reason of the libel “of and concerning plaintiff and his said wife, and plaintiff’s marital relations ” he has been damaged in the sum of $15,000. The plaintiff has not limited himself to a mere statement by innuendo that the Mrs. Garrison referred to in *430the alleged libelous article was his wife, so as to connect himself with the subject-matter complained of, hut has charged the libei to he both of his wife and himself and throughout his complaint has treated the article as libelous of both. There can, of course, be no single action for a joint libeling of husband and wife. In its present form the complaint is objectionable as combining allegations appropriate to two actions for damages, one by the husband and one by the wife, both , based on the same publication.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, "P. J., McLaughlin, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.