Tallmadge v. Press Publishing Co. — 28 N.Y. St. Rep. 396

Majority

p. 396

Daniel W Tallmadge, Resp’t, v. The Press Publishing Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

1. Bill op pabticulabs—Libel.

A defendant in an action for libel may be compelled to furnish a bill of particulars of the matters set up in defense.

3. Same—Delay in making- motion.

A plaintiff, by waiting nine months after the filing of the answer, does not waive his right to move for a bill of particulars, if defendant is not prejudiced by the delay.

8. Same—Scope op.

The order need not be confined to matters charged in the answer, as it is only necessary that defendant furnish particulars of matters he intends to prove.

Appeal from order directing defendant to furnish a bill of particulars.

Action for libel in publishing a statement that plaintiff, as a member of the legislature, voted for corrupt bills, for the passage of which large sums of money were reported to have been paid, as bribes to members, and had voted against bills for the defeat of which large sums were reported to have been paid as bribes, and was on' terms of intimacy with divers lobbyists and promoters of corrupt legislation.

The answer alleged the same facts in mitigation.

Nine months after the answer was filed plaintiff moved for a bill of particulars “of the several matters upon which it (defendant) proposes to offer proof in justification and in mitigation of damages.”

The order granted required defendant to furnish a bill of particulars, specifying by title what corrupt bills plaintiff voted and acted in the interest of for which money was paid as bribes ; whether the money was paid for their passage or defeat; when 0nd where the money was paid; when the plaintiff voted and

p. 397

acted corruptly, and giving the name of each lobbyist and promoter of corrupt legislation plaintiff was on terms of intimacy with.

De Lancey Nicoll, for app’lt; A. H. Dailey, for resp’t.

It is now well settled that a defendant may be compelled to furnish a bill of particulars of the matters set up for defense in a suit for libel. Ball v. Evening Post, 38 Hun, 11 . This case is decisive of the merits of this motion.

The plaintiff by waiting did not waive his right to make the motion and the defendant was in no way prejudiced by the delay. The notice of motion sufficiently apprised, the defendant of the relief desired and the affidavits were ample to sustain the relief granted.

The point that the order goes too far in that it requires particulars of matters not charged in the amended answer is not well taken. The object of a bill of particulars is to limit the proofs, and it is only necessary that the defendant should furnish particulars of those matters he intends to prove upon the trial. This was a case preeminently proper for requiring a bill of particulars and the order seems to be right and should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.