Kenny v. Phyfe — 139 N.Y.S. 324

Majority

p. 324

KENNY v. PHYFE.

(Supreme Court, Appellate Term, First Department.

January 13, 1913.)

Headnote

Pleading (§ 52^[1] )—Complaint—Several Causes of Action.

The third paragraph of the complaint in slander alleged upon information and belief that on or about June 15, 1912, the premises in question were broken into and certain personalty stolen therefrom. The fourth paragraph alleged upon information and belief that at divers times between said date and October 1st defendant, intending to injure plaintiff and to cause it to be believed that he had broken into the premises and stolen said property therefrom, in the presence and hearing of others maliciously spoke the following false and defamatory words: “My milkman, K. (meaning plaintiff), is the person who broke into and robbed my house”—meaning the premises referred to. Held, that the paragraphs stated distinct causes of action, so that they should have been separately stated and numbered.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 113; Dec. Dig. § 52.*] '

Appeal from City Court of New York, Special Term.

Action by John Kenny against Edith Phyfe. From an order denying defendant’s motion to require plaintiff to separately state and number the causes of action alleged in the complaint, and to make it more definite, defendant appeals.

Order reversed, and motion granted.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

Hawkins, Delafield & Longfellow, of New York City (M. Gregg Latimer, of Baltimore, Md., of counsel), for appellant.

John R. Jones, of New York City, for respondent.

^[1] The action is for slander. The third and fourth paragraphs of the complaint are as follows:

Third. Upon information and belief, that on or about June 15, 1912, said premises were broken into and certain personal property stolen therefrom.

Fourth. Upon information and belief, that at divers times between said date and October 1, 1912, at Narragansett Pier, ’Rhode Island, the defendant, intending to injure the plaintiff and to cause it to be believed that he had broken into said premises and stolen said property therefrom, in the presence and hearing of divers persons, maliciously spoke concerning plaintiff the false and defamatory words following: “My milkman, Kenny (meaning plaintiff), is the person who broke into and robbed my house” (meaning premises 147 East Thirty-Seventh street).

I think it is evident from a perusal of these allegations that they set forth several separate and distinct causes of action and that the motion should have been granted.

Order reversed, with $10 costs and .disbursements, and motion granted, with $10 costs. All concur.