General
BROCKLEMAN a. BRANDT
10 Abb. Pr. 141·New York Court of Common Pleas·1859·NY
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Opinion
BROCKLEMAN a. BRANDT.
New York Common Pleas;
Special Term, February, 1859.
Pleading.—Complaint for Malicious Prosecution.—Special Damage.
In an action for malicious prosecution, the complaint may aver matter tending to show the defendant’s motive,—e. g., a malicious publication by him procured to be made concerning the prosecution,—such as would be proper to prove at the trial, as showing special injury.
Such averments should not be struck out on motion, as the plaintiff cannot be deemed aggrieved by them.
Motion to strike out part of complaint.
The action was for a malicious prosecution and arrest. After setting forth the facts relied on as constituting the «wrong complained of, the complaint alleged that the defendant maliciously procured to be published matter concerning the same, which was libellous upon the plaintiff.
- These allegations the- defendant moved to be stricken out, as irrelevant or redundant.
H. H. Morange, for the motion.
Cited 4 How. Pr. R., 119, and Eddy a. Beach, 7 Abbott's Pr. R., 19.
Lane & Roclker, opposed.
Cited 2 Greenl. on Ev., 369, §§ 453, 456; Bull. N. P., 13, 14; Thompson a. Massey, 3 Greenl., 305; Tripp a. Thomas, 3 B. & c., 427; 2 Greenl. on Ev., § 254; 1 Chit. on Pl., 328, 346, 347 (4th ed.); Armstrong a. Perry, 5 Wend., 528, 539; Molony a. Dows, 15 How. Pr. R., 265; Root a. Foster, 9 Ib., 38; Hollenbeck a. Clow, 9 Ib., 295; 1 Chitt. Pl., 425, 397, 398.
[MAJORITY — Hilton, J.]
Hilton, J.
—Although the matter in the complaint which the defendant asks to have stricken out as irrelevant and redundant, contains a statement of facts tending to show the motive of the defendant in the prosecution which is claimed to be malicious, and which might be given in evidence on the trial without being pleaded (Molony a. Dows, 15 How. Pr. R., 261); yet it may also be regarded as an averment of special injury, and as such may be necessary to enable the plaintiff to give proof in respect to it.
In either point of view, however, the plaintiff cannot be aggrieved by it, and the motion must therefore be denied.'