Jacquelin v. Morning Journal Ass'n

O’Brien, J.: At the opening of the trial, before any testimony had been taken, the defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, in the absence of an allegation therein that the article was published of and concerning the plaintiff. The substantial question on this appeal is presented by the exception taken to the denial of this motion. At common law it was necessary to allege, in an action for libel, that the article complained of was published of and concerning the plaintiff, and to set up, by way of colloquium or prefatory averments, matter connecting the plaintiff with the publication. Tin's, however, is no longer necessary under our Code system of pleading, which provides (Code Civ. Proc. § 535): “ It is not necessary, in an action for libel or slander, to state in the complaint any extrinsic fact, for the purpose of showing the application to the plaintiff of the defamatory matter ; but the plaintiff may state, generally, that it was published or spoken concerning him.” Pursuant to the other provision of the Code (§ 519), which requires that the allegations of a pleading are to be liberally construed, the courts would seemingly be inclined to exact, not that the express language of the Code should be used, but that equivalent words would be sufficient. (New York & Westchester Water Co. v. The Morning Journal Association, 7 App. Div. 609.) The complaint here does not allege in terms that the libelous words were spoken of and concerning the plaintiff; yet [519] this John H. Rogers, plaintiff’s intestate, was formerly a trustee of the Broadway Savings Bank, a director of the Broadway National Bank, and at one time president of the Mechanics and Builders’ Exchange, and was married to a sister of Annie A. McKune, a daughter of the late James Stephens. The identity of names, together with a description of the man spoken of in the alleged libel, would seemingly raise a presumption of the identity of persons, and have a tendency to show that the article was written of and concerning the plaintiff’s intestate. It is unnecessary, however, to decide that the article sufficiently identifies it as being spoken of and concerning this particular John H. Rogers, because the complaint, in so far as it may have been ■deficient, was aided by many averments in the answer which pointed •out the identity of the plaintiff with the person about whom the words were published, particularly by the separate and distinct paragraphs contained in the third defense. If the complaint, standing by itself, was insufficient, advantage should have have been taken of this objection by demurrer. Where, however, an answer has been served and the case is on trial and the defendant then for the first time raises the objection, the sufficiency of the complaint is to be determined by the pleadings which are then before the court, and if the answer aids the complaint in the respects in which it is deficient by supplying the necessary averments, the motion to dismiss must be denied. Bliss, in his work on Code Pleading, states the rule as follows (§ 437): “ It is a rule of common-law pleading that an omission to state a material fact, either in the declaration or special plea, may be supplied by the pleading of the opposite party. Chitty calls itc express aider.’ ” This doctrine of the common law as to express aider has been frequently recognized in our Code pleading. Thus, in Cohu v. Husson (113 N. Y. 662), which was an action upon a promissory note, the ■complaint set forth the note and alleged that plaintiffs were the owners "thereof, but did not allege that it was executed by defendant or that any specific sum was due plaintiffs thereon as required by the Code of Civil Procedure (§ 534). The answer admitted the ■execution of the note by defendant; it did not allege payment, but set up as a defense want of consideration. Held, that if the complaint would have been held defective if demurred to, the defect [520] was cured by the answer, and that the complaint might be deemed amended. In that case, as in this, the motion to dismiss was made: at the opening of the trial upon the ground that the complaint did not state facts sufficient to constitute a cause of action. (See, also, Strauss v. Trotter, 6 Misc. Rep. 77; Miller v. White, 4 Hun, 62 Leon v. Bernheimer, 10 Wkly. Dig. 288; Bate v. Graham, 11 N. Y. 237.) The appellant contends further that for errors committed in the opening by plaintiff’s counsel to the jury the judgment should be set aside. These consisted of statements made by the counsel that, he intended to show that the plaintiff was a man of good character and had never been involved in any transaction in connection with which the charge of fraud or crime could be brought against him,, and that during his long life he had maintained a good reputation and had not been guilty of any specific acts of wrongdoing. We think that some latitude must necessarily be allowed to counsel in opening, and that even though he be in error in his statement of' what he expects to' be able or allowed to prove, a judgment otherwise right should not be disturbed on that ground, unless it clearly appears that the defendant was injured or that the counsel exceeded the limits of his privilege. If we take all that- the plaintiff’s counsel said and summarize it, it is but equivalent to a statement that the. plaintiff was a man of good character, and this is exactly what, in the absence of any statement or any issue being made on that subject, the law would presume. In this very case the defendant’s, counsel disclaimed any desire to attack the plaintiff’s character, and. because of that and for the additional reason that it was not put in issue it was not proper or necessary to prove it. If this statement were fatal to the judgment, equally fatal would be such a statement if made in the summing up of counsel, and yet we think it would be entirely proper for counsel to refer to that which the law presumes, that a man’s character is good, particularly in a case where: its being good is conceded. The appellant further insists that the damages awarded were-excessive. These are peculiarly within the province of a jury, and the court will not interfere with the amount unless it appears that the jury were influenced by passion or prejudice to award an excessive amount. Considering the nature of the publication, which was. [521] libelous per se, and its tendency to injure the plaintiff seemingly in his good name and reputation, though the amount awarded was. large it was not so excessive as to justify our conclusion that it was the result of excessive feeling against the defendant. The other exceptions to rulings upon evidence we have examined but find them without merit. We think that the judgment and order appealed from must be-affirmed, with costs. Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred. Judgment and order affirmed, with costs.