Judges: Woodward
Filed Date: 1/16/1903
Status: Precedential
Modified Date: 11/12/2024
The defendant appeals from an order denying its motion that plaintiff be directed to serve a bill of particulars “specifying in detail what portion or portions of the article mentioned in the complaint herein are alleged to be libels on the plaintiff, and in what respect such portion or portions of said article are alleged to be false, and what portion or portions of said publication are admitted to be true.” The theory of the defendant is, not that this bill of particulars is necessary to enable it to answer, but that no defendant in an action for libel ought to be called upon to justify, and upon the trial to prove, the truth of each and every statement contained in an article alleged to be false, if any portion of the article is true, or does not relate to the plaintiff, and plaintiff can, by serving a bill of particulars, point out the parts or portions that are true. It is specifically declared by the defendant that it “can answer without the bill,” and it is admitted that under the rule laid down in the First department in the case of Singer v. Times Co., 74 App. Div. 380, 77 N. Y. Supp. 531, the order appealed from could not be reversed, but it is urged that, as a bill of particulars relates only to the practice, this department is not bound by judicial comity to follow that case. It may be that in a matter of practice pure and simple this court might feel at liberty to differ with a co-ordinate court, but it seems to us that, while a bill of particulars in general is a matter of practice, the order which the defendant seeks would operate to materially alter the substantive law of libel by forcing the plaintiff to aid in making out the defendant’s justification. The plaintiff, in the matter now before us, sets forth the text of an article alleged to have been published by the defendant, says that this article is false and malicious, and that it constitutes a libel upon the plaintiff. It is not necessary to raise an issue that the defendant should have any further details. The entire article is alleged to be libelous, and the defendant may plead
Order affirmed, with $10 costs and disbursements. All concur.