Wilson v. McGregor — 34 N.Y. St. Rep. 775

Majority

p. 775

Sarah M. Wilson, Resp’t, v. Debby Ann McGregor, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Costs—Slander—Alienation of husband’s affections.

An action for alienation of a husband’s affections by slanderous and malicious reports is an action for a personal injury not triable before a justice of the peace,and upon recovery of less than fifty dollars the plaintiff is entitled to costs not exceeding the recovery.

Appeal from order of special term, vacating taxation of costs in defendant’s favor and directing taxation in plaintiff’s favor to the amount of forty-five dollars.

The respondent brought suit for alienation of her husband’s affections, by sayings of the defendant, and asked judgment for §15,000 damages. The jury gave her forty-five dollars.

The county clerk taxed costs of defendant and refused to tax the plaintiff’s costs. ■ Upon this the plaintiff moved, at special term, for re-taxation, and order was made reversing the county clerk and granting the plaintiff forty-five dollars costs; as much as recovery.

William D. Dickey, for app’lt; Wilton Bennet, for resp’t

complaint herein alleges “ That the defendant herein, wilfully and maliciously contriving, did unlawfully and illegally * * * alienate the affections of plaintiff’s husband by false, slanderous and malicious reports, to wit: that the plaintiff was a prostitute, etc., and divers other false, malicious and slanderous words,” also, that by reason thereof plaintiff’s “ home was broken up and the affections of her husband alienated.”

The last clause alleges the special damages suffered by reason of the utterance of the slanderous words. The complaint therefore states the facts constituting the cause of action.

We may call it an action of slander or one in the nature of seduction, the former, T think, more nearly describes it, but if it is either, it was one not proper to be brought before a justice of the peace, and, hence, the costs, as finally adjusted, were correct.

This is clearly an action for a personal injury and under § 3343, subd. 9, such an action includes “ Libel, slander, seduction,” etc., * * * “ or any other actionable injury to the person of the plaintiff or of another.

It seems to be clearly the intent of the Code that actions of this nature shall not be tried before a justice of the peace, and that where the recovery is less than fifty dollars the costs shall not exceed the recovery.

We think the order is right and must be affirmed.

Order affirmed, with costs and disbursements.

Dykman, X, concurs; Baenaed, P. X, not sitting.