Pring v. Thorp — 152 N.Y.S. 469

Majority

p. 469

PRING v. THORP.

(No. 7118.)

(Supreme Court, Appellate Division, First Department.

April 1, 1915.)

Headnote

1. Libel and Slander <@=>99—Bill of Particulars—Hearers of Slander.

In an action for slander, plaintiff may be required by bill of particulars to state the name of one person who was present each time the slander was uttered.

[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 233; Dec. Dig. <S=>99.]

2. Libel and Slander <@=>99—Bill of Particulars—Times and Places of Utterance of Slander.

In an action for slander, the defendant by bill of particulars may compel the plaintiff to disclose each and all of the times and places where the plaintiff claims and expects to prove that the slanderous words were uttered.

[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 233; Dec. Dig. <@=>99.]

3. Discovery <@=>37—Bill of Particulars—Slander—Times and Places— Examination of Defendant.

In an action for slander, on motion for a bill of particulars by defendant to require the plaintiff to specify the times and places when and where the slanderous words were uttered, if the plaintiff cannot state such details specifically, he may secure an order for the examination of the defendant, to enable him to obtain the information to furnish the bill of particulars.

[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 50; Dec. Dig. <@=>37.]

Appeal from Special Term, New York County.

Action by Frederick Pring against Richard C. Thorp. From an order directing plaintiff to serve a bill of particulars, he appeals. Modified and affirmed.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

Kellogg & Rose, of New York City, for appellant.

R. W. Candler, of New York City, for respondent.

The action is for damages for slander alleged to have been uttered by defendant “during the months of August; September, and October, 1912, * * * in the presence and hearing of divers persons.” The order appealed from requires plaintiff to furnish particulars: (a) Of each and all of the times and places during the months named when plaintiff claims and expects to prove that the slanderous words were uttered; and (b) the names of the persons in whose presence and hearing the plaintiff claims and expects to prove such utterances.

[1] As to. the second item, it will be sufficient if plaintiff is required to state the name of one person who was present on each occasion (Rowe v. Washburne, 62 App. Div. 131 , 70 N. Y. Supp. 868 ), and the order will be modified accordingly.

[2,3] As to the times and places of utterance, the defendant is clearly entitled to be advised in advance of the trial, and is therefore

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entitled to the particular sought. If, as may be the case, the plaintiff is not now able to state the times and places with particularity, he will be entitled to examine the defendant, and to prove by him at what times and places he used the words complained of. Ball v. Evening Post Pub. Co., 48 Hun, 149 -151. It will be necessary upon the trial for plaintiff to prove, as part of his case, the times and places of utterance, and he may consequently examine defendant for the purpose of proving the facts by him.

The order will be modified as above suggested, and, as modified, affirmed, without costs to either party.