Hartmann v. Winchell

269 A.D. 1029 | N.Y. App. Div. | 1945

Martin, P. J.

(dissenting in part). It has been held that the radio broadcast of a script containing defamatory matter constitutes libel (Hryhorijiv v. Winchell, 180 Misc. 574, affd. 267 App. Div. 817). Each publication of defamatory matter constitutes a separate cause of action (Cook v. Conners, 215 N. Y. 175). The plaintiff may have one cause of action for the defamatory matter in the radió broadcast and one for the newspaper publication. However, as I read the first cause of action alleged in the complaint, there is but one cause of action based on the radio broadcast which incorporates by reference the matter contained in the newspaper article. The newspaper article is properly pleaded at length for an understanding of the radio broadcast (Grant v. Herald Company, 42 App. Div. 354),

Insofar as the order appealed from dismisses the first cause of action set forth in the amended complaint, it should be reversed. The dismissal of the second and third causes of action alleged in the amended. complaint should be affirmed.

Dore, Cohn, Callahan and Peck, JJ., concur in decision; Martin, P. J., dissents in part in opinion.

Order affirmed, with $20 costs and disbursements, with leave to the plaintiff to serve an amended complaint separately stating and numbering the causes of action sought to be alleged in the first cause of action, within ten days after service of order with notice of entry, on payment of said costs. No opinion. [See 270 App. Div. 753.]