Breisacher v. McAuley

Appellate Terms of the Supreme Court of New York

Breisacher v. McAuley

130 N.Y.S. 137

Appellate Terms of the Supreme Court of New York·Decided June 12, 1911·Published

Opinion

GUY, J.

Action against defendant, a police officer, for trespass and advising plaintiff’s tenants to remove from plaintiff’s building. The defendant answered, denying all trespass or defamation. The [138] amended complaint added allegations of express malice,' characterizations of the alleged defamatory matter, and allegations of special damages.

The substitution of a new attorney for the plaintiff lends some support to the plaintiff’s claim that her former attorney did not question her with sufficient particularity when he drew the original complaint. There is, however, evidence of loches and neglect to prosecute. If the amendment is allowed to stand, the plaintiff should pay the taxable costs to date, including the costs of this appeal. Kerrigan v. Peters, 108 App. Div. 292, 95 N. Y. Supp. 723; Bruns v. Brooklyn Citizen, 98 App. Div. 316, 90 N. Y. Supp. 701; Rosenberg v, Feiering, 124 App. Div. 522, 523, 108 N. Y. Supp. 941.

Order modified, so as to provide for payment by plaintiff of all taxable costs to date, and, as so modified, affirmed, with $10 costs and disbursements to appellant. All concur.

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GUY, J.

Action against defendant, a police officer, for trespass and advising plaintiff’s tenants to remove from plaintiff’s building. The defendant answered, denying all trespass or defamation. The [138] amended complaint added allegations of express malice,' characterizations of the alleged defamatory matter, and allegations of special damages.

The substitution of a new attorney for the plaintiff lends some support to the plaintiff’s claim that her former attorney did not question her with sufficient particularity when he drew the original complaint. There is, however, evidence of loches and neglect to prosecute. If the amendment is allowed to stand, the plaintiff should pay the taxable costs to date, including the costs of this appeal. Kerrigan v. Peters, 108 App. Div. 292, 95 N. Y. Supp. 723; Bruns v. Brooklyn Citizen, 98 App. Div. 316, 90 N. Y. Supp. 701; Rosenberg v, Feiering, 124 App. Div. 522, 523, 108 N. Y. Supp. 941.

Order modified, so as to provide for payment by plaintiff of all taxable costs to date, and, as so modified, affirmed, with $10 costs and disbursements to appellant. All concur.

Breisacher v. McAuley, 130 N.Y.S. 137 (N.Y. Ct. App. 1911).

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