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Mason v. New York Review Pub. Co.

139 N.Y.S. 639 Court N.Y. App. Div. Decision date 1913-01-10 English

Delivered by DOWLING, J.

Contents

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p. 639
MASON v. NEW YORK REVIEW PUB. CO. et al.
(Supreme Court, Appellate Division, First Department.
January 10, 1913.)

Headnote

Discovery (§ 38[1] )—Examination Before Trial—Right.
In libel-against a publishing company and individual defendants, plaintiff was entitled to examine before trial the individual defendants and
p. 640
the actual publisher of the libel, for the purpose of establishing their connection with the publication, and showing that they knew the article to be false.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 51; Dec. Dig. § 38.*]
Appeal from Special Term, New York County.
Action by John Mason against the New York Review Publishing Company. From an order granting a motion to vacate an order for examination of defendants before trial, plaintiff appeals.
Order reversed, and order for examination modified.
Argued before INGRAHAM, P. J.. and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.
Gerald B. Rosenheim, of New York City, for appellant.
Max D. Steuer,"of New York City, for respondents.

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 $10 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.” All concur.