John Mason, Appellant, v. New York Review Publishing Company and Others, Respondents

John Mason, Appellant, v. New York Review Publishing Company and Others, Respondents. First Department, January 3, 1913. Practice — libel — examination of defendants before trial. Where a complaint in an action against a corporation for libel names several individual defendants as persons who caused the article complained of to be printed and published, which is denied by the answer, the plaintiff is entitled to examine the individual defendants before trial to establish them connection with the publication. He may also examine them to determine whether they knew the article to be false. Appeal by the plaintiff, John Mason, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of November, 1912, respectively, granting two motions to vacate an order for the examination of certain of the defendants before trial. Gerald B. Rosenheim, for the appellant. Max D. Steuer, for the respondents. [MAJORITY — Dowling, J.:] Dowling, J.: This action is brought to recover damages for the publication of a libel concerning plaintiff in the New York Review. The amended complaint sets forth that the defendants, and each of them, caused to be printed and published the article complained of. This is denied by the .answer of the' respondents herein. An order for their examination has been vacated. While the order might have permitted a wider scope of examination than was proper, plaintiff was undoubtedly entitled to examine the defendants as to the allegations set forth in the paragraphs of the amended complaint numbered “Third” and “Fifth,” for he cannot recover against the individual defendants unless he establishes their connection with the publication complained of, and to ascertain this he is entitled to question them as well as the actual publisher of the libel. He is entitled as well to show, if he can, that defendants knew the article complained of to be false. The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements to appellant, and the order for the examination of respondents modified by limiting it to the matters set forth in the paragraphs of the amended complaint numbered “Third” and “Fifth.” Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred. . Order reversed, with ten dollars costs and disbursements, and order for examination modified as stated in opinion. Order to be settled on notice.