Hull v. Vreeland

18 Abb. Pr. 182

• Court: New York Supreme Court
• Decided: September 15, 1864
• Status: Published

Opinion

Sutherland, J.

Without meaning to express an opinion, that in all cases a cause of action for slander can be properly united with a cause of action for malicious prosecution, I am of the opinion that the two causes of action set forth, or intended to be set forth, in the complaint in this action, both arise within the meaning of section 167 of the Code, out of injuries to character, and that, therefore, they were properly united in the same complaint.

The plaintiff must have judgment on the demurrer, with costs, with liberty to the defendant to answer in twenty days on payment of costs.

From the order entered thereon the defendant appealed.

John Townsend, Jr., and Peter Y. Cutter, for the appellant. —I. The complaint does not set forth a good cause of action for malicious prosecution. 1. It does not aver "want of probable cause, which is the very basis of the action. 2. The count for slander is defective, inasmuch as it does not contain the exact words spoken, but only an allegation of the substance or meaning of the words.

II. Two causes of action have been improperly united, without being separately stated. The two causes of action are slander and malicious prosecution, or at least false and malicious arrest. These, if united, should have been separately stated. (Getty a. Hudson River R. R. Co., 8 How. Pr., 177; Van Namee a. People, 9 Ib., 198; Durkee a. Saratoga & Wash. R. R. Co., 4 Ib., 226; Pike a. Van Wormer, 5 Ib., 171; Strauss a. Parker, 9 Ib., 342; Acome a. American Mineral Co., 11 Ib., 24.) But the actions of slander and malicious prosecution cannot be united under the Code. By section 167 of the Code, subd. 3, all causes of action, ex delicto, can be joined, except slander and libel; and by subd. 4 of same section, actions for injuries to character (i.e. slander and libel) are placed in a distinct class. (Alger a. Scoville, 6 How. Pr., 131.)

III. Ho adjudication has been found that an action for slander uttered in a foreign country may not be maintained; but it has been repeatedly held that an actiop for assault and battery or false imprisonment could not be maintained where the cause of action occurred abroad. And an action for a slander uttered abroad rests on the same principle. (Moloney a. Dows, 2 Hilton, 247.)

IY. The slander is averred to have been uttered in Hew Jersey. Hew Jersey is a foreign country. The complaint does not aver that by the laws of Hew Jersey the words uttered were slanderous.

Y. The count in slander is clearly bad, because the words are averred to have been spoken in the course of a judicial proceeding, and as part of a prosecution alleged to have been malicious. A plaintiff cannot thus split up a cause of action for malicious prosecution into two actions. (Sheldon a. Carpenter, 4. Comst. Rep., 579.) 1. Hor does he state the slanderous words. 2. He merely states that the words amounted to a charge of forgery.

L. S. Chatfield, for the respondent.

By the Court,

*—Leonard, J.

—The defendant has demurred to the complaint on three separate grounds :

First. For an improper joinder of two causes of action, one for slander, and the other, as the defendant insists, for malicious prosecution.

Second. That the facts stated in the complaint do not constitute a cause of action.

Third. That this court has not jurisdiction of the subject of the action.

The first cause of action stated in the complaint is unquestionably for slander. The second cause of action is inartificially stated, and, if intended as a count for malicious prosecution, wants one essential averment, viz: that the act complained of was without probable cause. But I think it was not the intention of the pleader to allege “ malicious prosecution” in the technical sense.

The second count is for an injury to the plaintiff’s character by a false and malicious charge, made by the defendant under oath before a grand jury, whereby several matters of special damage occurred, -which the plaintiff sets forth.

These are causes of action which are embraced in the fourth subdivision of section 167 of the Code, and may be properly united in a complaint.

The defendant’s counsel also urged at the argument that the complaint does not state the exact words spoken, and is therefore defective.

The complaint states that the words therein contained are those which the defendant spoke of, and concerning the plaintiff. It is true that the style is rather unusual for a conversation, but I am unable to perceive that the defendant did not use the words in the complaint set forth exactly as there stated.

The supposed want of jurisdiction arises from the acts complained of having transpired in Hew Jersey. The cause of action is transitory, and the plaintiff can recover his damages for such an injury wherever the defendant can be found. The slanderer does not acquire an immunity by departing from the State where he committed the injury.

Hone of the grounds urged against the complaint are well taken.

The order must be affirmed with costs of the appeal, with leave to answer in twenty dajns on payment of the costs of the demurrer and of the appeal, to be adj usted by the clerk.

Present, Leonard, Clerke, and Sutherland, JJ.