Phelan v. Rycroft

New York Supreme Court

Phelan v. Rycroft

27 Misc. 48, 57 N.Y.S. 251

DecidedMarch 15, 1899

StatusPublished

This text of 27 Misc. 48 (Phelan v. Rycroft) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Phelan v. Rycroft, 27 Misc. 48, 57 N.Y.S. 251 (N.Y. Super. Ct. 1899).

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Opinion

Giegerich, J.

By amendment of the complaint the plaintiff seeks to set up a slanderous utterance by the defendant, made under circumstances different from- those' disclosed in the original complaint, and which could not be met by the defense of privilege alleged in the answer. A cause of action for these Words would be barred by the Statute of Limitations, and-1; therefore, conclude that .'the motion; should be denied upon, the- authority of Williams v. Cooper, 1 Hill, 638. If the words are to be viewed merely as; a repetition, and are sought, to he proven' in. further proof - of malice; then they need not be specifically pleaded.. Enos v. Enos, 135 N. Y. 609. There is still another- ground upon- which- the:. [49]*49motion should he denied. The affidavit upon which it is based was made by the plaintiff’s attorney, and no reason is given why it was not made by the plaintiff himself. It is the well-settled practice that unless the facts upon which a motion is founded are peculiarly within the knowledge of the attorney, the affidavit should be made by the party. Rhodes v. Lewin, 33 App. Div. 369, 370. It appears from the affidavit in question that the matters therein set forth were peculiarly within the knowledge of the plaintiff,, and are founded solely upon information received from him. The affidavit is, therefore, defective, and it follows from these views that the motion should be denied, with $10 costs.

Motion denied, with $10 costs.

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Giegerich, J.

By amendment of the complaint the plaintiff seeks to set up a slanderous utterance by the defendant, made under circumstances different from- those' disclosed in the original complaint, and which could not be met by the defense of privilege alleged in the answer. A cause of action for these Words would be barred by the Statute of Limitations, and-1; therefore, conclude that .'the motion; should be denied upon, the- authority of Williams v. Cooper, 1 Hill, 638. If the words are to be viewed merely as; a repetition, and are sought, to he proven' in. further proof - of malice; then they need not be specifically pleaded.. Enos v. Enos, 135 N. Y. 609. There is still another- ground upon- which- the:. [49]*49motion should he denied. The affidavit upon which it is based was made by the plaintiff’s attorney, and no reason is given why it was not made by the plaintiff himself. It is the well-settled practice that unless the facts upon which a motion is founded are peculiarly within the knowledge of the attorney, the affidavit should be made by the party. Rhodes v. Lewin, 33 App. Div. 369, 370. It appears from the affidavit in question that the matters therein set forth were peculiarly within the knowledge of the plaintiff,, and are founded solely upon information received from him. The affidavit is, therefore, defective, and it follows from these views that the motion should be denied, with $10 costs.

Motion denied, with $10 costs.

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27 Misc. 48, 57 N.Y.S. 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phelan-v-rycroft-nysupct-1899.

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