Majority
p. 221SUPREME COURT. Jacob H. Deyo agt. Abraham Brundage. Albany Special Term, Aug., 1856.
Headnote
ín an action of slander, it cannot be regarded ao irrelevant for the plaintiff to allege, in his complaint, the facts which, upon the trial, he would be allowed to prove in support of his action.That is, the plaintiff need not select out from the whole Conversation those expressions only which involve the slanderous charge; but may allege all that Was said at the time, that when proved the juiy may be able to determine What was intended.
Motion to strike out, &c.
The complaint alleged that the defendant, in a certain dis» course, See., spoke and published, of and concerning the pi aim tiff, the following slanderous words: “ Your wife is a damned Irish woman, and has got the palsy; and your son is insane, and you are a damned thief A
The'defendant moved to strike out the words, " your wife is a damned Irish woman, and has got the palsy, and your son is insane,” as irrelevant and redundant.
J. Hardenburgh, for plaintiff
E. Cooke, for defendant.
It is true, that the only actionable lam guage imputed to the defendant in the complaint, is that by which he charges' that the plaintiff is a thief. If, Upon the trial, this should be proved, the action would be sustained, whether the residue of the allegation should be proved or not. But, in proving the charge, it would be proper, indeed neces* sary, to prove all that was said at the time, in order that the jury may be able to determine, from the whole conversation, what was intended.
It may not be necessary to allege in the complaint all that was said, and yet it is certainly quite proper. It cannot be
p. 222
regarded as irrelevant for the plaintiff to allege the facts which) upon the trial, he would be allowed to prove, in support of his action. I have always thought it the best and fairest, mode of stating the cause of action, in cases of this description. No useful end could be attained by requiring the plaintiff, when preparing his complaint, to select out from the whole conversation those expressions only which involve the slanderous charge.
The motion must be denied, with costs.