Cerro de Pasco Tunnel and Mining Company, Respondent, v. James B. Haggin, Appellant

Cerro de Pasco Tunnel and Mining Company, Respondent, v. James B. Haggin, Appellant. Xibel and slander — a complaint not alleging the date of publication or utterance—• the defendant is entitled to have it state several causes of action separately, or, if it states but one, to have it made more definite and certain. The complaint in an action alleged, for a first cause of action: “ That heretofore and prior to the first day of January, 1905, at divers times, the defendant maliciously composed, and caused to be composed and published concerning the plaintiff, at the City of New York and at the City of London, England, and elsewhere, the false and defamatory matter following, to wit, The ‘ Cerro de Pasco Tunnel and Mining Company (meaning the plaintiff herein) is a fake concern; it is a strike against me (meaning the defendant) and my associates; the Cerro de Pasco Tunnel and Mining Company has no property and it has no mines, and is a fraud on those who have been induced to buy its stock; it is a fake concern; its officers are frauds, blackmailers and liars, and had published false statements about the financial condition, alleged property rights and business of the'plaintiff, and the purpose of the company, is to blackmail me and my associates as owners of mines in Peru.’ ” For a second cause of action said complaint alleged: “ That at divers times prior to the first day of January, 1903, in the City of New York and elsewhere, the defendant, in the presence and hearing of divers persons, maliciously spoke concerning the plaintiff the false and defamatory words following, to wit: The ‘ Cerro de Pasco Tunnel and Mining Company (meaning the plaintiff herein) is a fake concern, it is a strike against me (meaning the defendant) and my associates; the Cerro de Pasco Tunnel and Mining Company has no property and it has no mines, and is a fraud on those who have been induced to buy its stock; it is a fake concern; its officers are frauds, blackmailers and liars and had published false statements about the financial condition, alleged property rights and business of the plaintiff, and the purpose of the company is to blackmail me and. my associates as owners of mines in Peru.’”' Meld, that owing to the failure of each of the two counts to mention any specifies date on which the libel or libels were published and the slander or slander® were uttered, it could not be determined whether the plaintiff intended to state moré than one cause of action in each of said counts; That, therefore, the plaintiff should be required to state separately and number his several causes of action, if he relied upon several causes of action arising-. out of the matters contained in each count, Or if he did not and intended to sue only upon one publication and upon one defamatory utterance, he, should make his complaint more definite and certain. Appeal by the defendant, James B. Ilaggin, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on. the 29th day of May, 1905, denying thé defendant’s, motion to compel the plaintiff to separately state and. number the alleged causes of action, Clifton P. Williamson, for the appellant. John Delahunty, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: This is an appeal from am order denying the defendant’s motion, to compel -the plaintiff to state and number separately several causes of action which the defendant insists are included in each of two subdivisions of the complaint, or to make the allegations of the complaint more definite and certain. The action is brought to recover damages for libel- and for slander. As the complaint'is drawn, it 'is alleged for a first cause of action : “ That heretofore and prior to- the first day of January, 1905, at' divers tipies the defendant maliciously composed, and caused to be composed and published concerning the plaintiff, at the City of Mew York and at the City of London, England, and elsewhere, the false and defamatory matter following, to wit, The ‘ Cerro de Pasco Tunnel and Mining Company (meaning the plaintiff herein) is a fake concern ; it is a strike against me (meaning the defendant) and my associates; the Cerro de Pasco Tunnel and Mining'Company has no property and it has no mines, and is a fraud on those who have been induced to buy its stock; it is a fake concern ; its officers are frauds, blackmailers and liars, and liad published false statements about the financial condition, alleged property rights, and business of the plaintiff, and" the purpose of the company is to blackmail me and my associates as owners of mines in Peni.’ ” For a second cause of action it is alleged in the complaint aS follows: “ That at divers times prior to the first day of January, 1905, in the City of New York and elsewhere, the defendant in the presence and hearing of divers persons maliciously spoke concerning the plaintiff the false and defamatory words following, to wit: The ‘ Cerro de Pasco Tunnel and Mining Company (meaning the plaintiff herein) is a fake concern, it is a strike against me (meaning the defendant) and my associates; the Cerro de Pasco Tunnel and Mining Company has no property and it has no mines, and is a fraud on those who have been induced' to buy its stock; it is a fake concern; its officers are frauds, blackmailers and liars and had published false statements about the financial condition, alleged property rights and business of the plaintiff, and the purpose of the" company is to blackmail me and my associates as owners of mines in Pern.’ ” The criticism of this complaint is that several causes of action for libel are stated in the count for libel and several causes of action for slander in the slander count, or that if a single publication is relied upon in the first cause of action and a single defamatory utterance in the second cause of action, the complaint should have been made more definite and its allegations rendered certain. On the other hand, it is claimed that but one cause of action is set forth in each count. It seems to us that the criticism made of the complaint is well, founded. In the count for libel there is no specific date mentioned of the publication of the alleged defamatory matter. It is said that the defendant composed and published it at the city of New York and at the city of London, Eng., and elsewhere, prior to the 1st day of January, 1905 ; but when prior to that date is not made to appear. Each publication would constitute a separate cause of action. If but one specific date had been mentioned, that would possibly have sufficed, and the statement that at divers other times the libelous matter was composed and published might have been regarded as redundant. Such was the rule, in the case of Gray v. Nellis (6 How. Pr. 290), which is reli id upon in, support of the order appealed from. In that' case, which was an action pf slander, the .plaintiff set forth the speaking of the words at a time a.nd place certain and alleged that the defendant on divers days and times between that day and the commencement of the action spolte the same words; and it was held on clemtorrer that the complaint was sufficient, inasmuch as it named a precise day, and. that the other allegation was redundant. If the plaintiff in this action intended tp. sue upon one publication only, the time and place should have been stated at which it was made. These remarks as to the count in libel control, so far as they are applicable, the count in slander. The motion should have been granted and the plaintiff should have been required to state separately and number his several causes of action, if he relies upon several causes of action arising out of the matters contained in each count, or if he does not, and intends to sue only upon one publication and upon one defamatory utterance, he should make his complaint more definite and certain. The order must be reversed and the motion granted in the manner above indicated, with costs and disbursements of this appeal .and ten dollars costs of the motion. O’Brien, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with ten dollars costs.