National Gramophone Corp. v. American Talking-Machine Co.

Majority

p. 600

NATIONAL GRAMOPHONE CORP. v. AMERICAN TALKING-MACH. CO.

(Supreme Court, Appellate Division, First Department.

April 2, 1900.)

Headnote

Libel — Action—Bill or Particulars.

It is error to require plaintiff to furnish a bill of particulars specifying persons, firms, and corporations whose custom it had lost by reason of the publication by defendant of an alleged libel, before answer by defendant, since, though such information should be furnished defendant- before trial, it is not necessary to enable him to answer, as he could deny or justify the publication, - or plead matters in mitigation of damages, without the information sought by the bill of particulars.

p. 601

Appeal from special term, New York county.

Action by the National Gramophone Corporation against the American Talking-Machine Company. From an order directing plaintiff to furnish defendant a bill of particulars, plaintiff appeals.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLAUGHLIN, and PATTERSON, JJ.

Frank Cochrane, for appellant.

Henry J. McCormick, for respondent.

The order appealed from in this case was prematurely granted. The action was to recover damages for an alleged libel, and it was set forth in the complaint that one of the consequences of the libelous publication was that the plaintiff was injured in its reputation, good name, and business, and that various customers declined and refused to purchase and pay for its goods and wares, and that it became and was unable to sell and dispose of the same to such customers. Before answering, the defendant moved that the plaintiff be required to serve a bill of particulars, specifying, among other things, the names of every person or persons, and their addresses, and whether they be persons, firms, or corporations, whose custom has been lost through said alleged libelous publication, and further specifying “every person and firm to whom he intends to prove the alleged libelous statement was published.” The pretext upon which this bill of particulars was asked for is to enable the defendant to answer the complaint. It is quite obvious that the information sought to be obtained by this motion was unnecessary to enable the defendant to answer. It could have denied or justified, or pleaded in mitigation, without being apprised of the names of the plaintiff’s witnesses or the persons who had been affected by the publication of the alleged libel. That, after issue joined and before trial, it may become important for the defendant to have some of the information sought to be elicited by the bill of particulars, may be true, but it will be time enough to consider that when the occasion arises.

As it is, the order should not have been made, and must be reversed, with $10 costs and disbursements, and the motion for a bill of particulars denied, with $10 costs.