De Groot v. Brooklyn Daily Times

Order reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The complaint in its present form alleges but one cause of action, founded upon the publication marked Exhibit “ C.” It is not now claimed by the plaintiff that the first two publications, Exhibits “ A ” and “ B,” were false or libelous. They are incorporated in the complaint on the theory that they explain certain phrases in Exhibit “ C,” the full meaning of which will not be conveyed without reference to Exhibits “ A ” and “ B.” (Fisher v. New Yorker Staats-Zeitung, 114 App. Div. 824; Cook v. Conners, 215 N. Y. 175; Woodhouse v. New York Evening Post, Inc., 201 App. Div. 9.) Heretofore, this court made an order directing the plaintiff to state and number separately his causes of action. (230 App. Div. 783.) In the original complaint the plaintiff alleged, in one count, that all three publications were false and libelous. In the pleading in its present form he has abandoned any claim for damages resulting from the publication of Exhibits ‘‘ A ” and “ B.” In our opinion, the amended complaint complies with our prior order in that the plaintiff is under no obligation to allege three causes of action if he sees fit to abandon two of them. In view of our former decision the learned Special Term was unauthorized to determine that the plaintiff’s proposed amended complaint did not comply with the order of this court, and to make an order denying plain 684 tiff’s motion to compel defendant to accept service of the proffered amended complaint on that ground but permitting service of it as an amended complaint and directing that it be accepted by defendant and further directing that it “ shall constitute the amended complaint in this action.” Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ., concur. Settle order on notice.