Hull v. Vreeland

By the Court, Leonard, P. J. The defendant has demurred to the complaint on three separate grounds: 1. For an improper joinder of two causes of action, one for slander and the other, as the defendant insists, for malicious prosecution. 2. That the facts stated in the complaint do not constitute a cause of action. 3. 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 [547] 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. [New York General Term, November 7, 1864. 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 days on payment of the costs of the demurrer and of the appeal, to be adjusted by the clerk. Leonard, GlerJce and Sutherland, Justices.]