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Collyer v. Collyer

3 N.Y.S. 310 Court N.Y. Sup. Ct. Decision date 1888-12-13 English

Delivered by Pratt, J.

Contents

Majority

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Collyer v. Collyer.
(Supreme Court, General Term, Second Department.
December 13,1888.)

Headnote

1. Libel and Slander—Slanderous Words—Larceny oe Papers.
An accusation that plaintiff “stole and destroyed my sister’s will and other papers ” is slanderous; Pen. Code N. Y. § 110, declaring that one who, knowing that a paper may be required in evidence, willfully destroys it to prevent its production, is guilty of a misdemeanor; and sections 528, 718, making any article of value, contract, thing in action, or written instrument, by which any pecuniary obligation or interest in property is created, transferred, increased, diminished, etc., the subject of larceny. The charge imputing theft will be presumed to have been made in reference to papers that may be the subject of larceny.
8. Same—Pleading—Amendment at Trial.
An amendment of the complaint at the trial, in reference to the words spoken, so as to make them impute a destruction as well as a theft of the papers, is proper, under Code Civil Proc. N. Y. § 723, authorizing the court at the trial, in furtherance of justice, to amend the pleadings.
Appeal from circuit court, Westchester county.
Action by E. M. Collyer against G. B. Collyer for slander. Plaintiff had judgment, and defendant appeals. By Code Civil Proc. £T. Y. § 723, “the court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of j ustice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of'a party, or a mistake in any other respect, or by inserting an allegation material to the case, or, where the amendment does not change substantially the claim or defense, by conforming, the pleading or other proceeding to the facts proved; and, in every stage of the action, the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party. ” The following are sections from Pen. Code 2f. Y.: “Sec. 110. A person who, knowing that a book, paper, record, or instrument in writing, or other matter or thing, is or may be required in evidence upon any trial, hearing, inquiry, investigation, or other proceeding authorized by law, willfully destroys the same, with intent thereby to prevent the same from being produced, is guilty of a misdemeanor.” “Sec. 528. A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person,' either (1) takes from the possession of the true owner, or of any other person, or obtains from such possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing, or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind, * * *
steals such property, and is guilty of larceny. ” “Sec. 718. In construing this Code, or an indictment or other pleading in a case provided for by this Code, the following rules must be observed, except when a contrary intent is plainly declared in the provision to be construed, or plainly apparent from the context thereof:” “ (9) The term ‘ property ’ includes both real and personal property,—things in action, money, bank-bills, and all articles of value.” “(15) The term ‘ personal property ’ includes every description of money, goods, chattels, effects, evidences of rights in action, and all written instruments by which any pecuniary obligation, right, or title to property, real or personal, is created, acknowledged, transferred, increased, defeated, discharged, or dimin-' ished, and every right and interest therein.” Argued before Barnard, P. J., and Pratt, J.
Glover, Sweezey <& Glover, for appellant. Seaman Miller, for respondent.

This is an action for slander. The complaint charges that defendant uttered the following words concerning the plaintiff: “He and Steve

p. 311
got my nephew, whom I left in charge of the house, drunk, and they went through the house, and stole my sister Elizabeth’s will, and other papers.” On the trial the plaintiff was permitted to amend by adding after the word “stole” the words “and destroyed,” to which exception was taken. We think the complaint was sufficient without the amendment. The defendant characterized the act as larceny, and by including the words “other papers” with the word “will” it is plain that if a larceny can be predicated upon the felonious taking of any papers the charge was complete. It was not necessary that the defendant should specify precisely what papers, as by describing the act as a theft he must be presumed to have charged it in respect to papers that could be the subject of larceny. It is not, therefore, necessary to decide whether a will can ever be the subject of larceny, as the charge included other property, and by not so far explaining as to show that the act charged referred to papers that could not be the subject of larceny the defendant did charge the plaintiff with a crime. It is claimed, however, that the verdict was rendered under the judge’s charge for words imputing another offense which had been added to the complaint upon the trial. The action was brought for words spoken upon a certain occasion stated in the complaint. The amendment related to the subject-matter under invditigation. It did not seek to set up a new cause of action, or refer to any other occasion or charge than that described in the complaint. The reason why amendments which change the cause of action are not permitted upon the trial is that a party may be surprised, and unable to meet the changed aspect of the case. The reason of the rule fails in this case, as no surprise could be claimed by defendant. But under section 723 of the Code of Procedure the court had the power, and properly exercised its discretion, to allow the amendment. It is not essential to constitute slander that the charge must be of an offense at common law. It is sufficient that the charge, if true, would subject the party slandered to indictment. By reading sections 110, 528, and 718 of the Penal Code, it is clear that the words charged a crime, and were slanderous per se. The verdict is fully sustained by the evidence, and the judgment must be affirmed, with costs.

Barnard, P. J., concurs.