Loomis v. Swick

3 Wend. 205 | N.Y. Sup. Ct. | 1829

By the ' Court,

Marcy, J.

Defects in a count are not aided because such count is found in a declaration with another count that is not defective: each must shew a sufficient cause of action. But in declaring in actions of slander, it is unnecessary and unusual to preface each count with all the inducements and allegations contained in the first. Such a mode of declaring would justly merit censure, as leading to useless prolixity and expense. The counts which follow the first, wanting the necessary allegations, will not be cured by the first, if they do not refer to the allegations contained in the introductory part of the first, where these allegation are necessary to be stated to show a cause of action. The objection to the second and third counts of the declaration in this case is, that it is not averred in either of them that the plaintiff was a merchant. Unless the plaintiff sustained that character the words uttered by the defendant are not actionable. It is not disputed but that a proper reference in these counts to the first count would have removed the objection. There is, in my opinion, such reference. It is stated in each of them that the defendant in another discourse spoke and published of and concerning the plaintiff “ in his trade and business of a merchant, and of and concerning his said books of account which he kept with his customers and others, as such merchant as aforesaid,” &c. This is a sufficient reference to the inducement in the first count, wherein the plaintiff is stated to have been a merchant at the time of uttering the slanderous words, to cure the defect. This precise mode of declaring appears to have received the express sanction of this court in the case of Mott v. Comstock, (7 Cowen 654;) and it is in conformity to the precedents in Chitty’s Pleadings, (vol. 3, p. 260.)

There is also an objection'raised oh this motion of a vari-ance between the words stated in the pleadings and those proved on the trial. This objection does not appear to have ^Ben made at the trial, and therefore cannot now be considered ; for we cannot say that if it had there been raised, it could not have-been obviated. Besides, it seems not to be well founded in fact. It is true, words very different from those laid in the declaration were proved ; but some of those laid were the same, and they constituted a distinct charge. Enough was proved as laid to sustain the action, and the plaintiff need not prove more. (2 East, 438. 2 W. Black. 790. 2 Saund. 74 b.

Motion for new trial denied.