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the sum of $500, payable three months after date, for value received, and that said note is wholly unpaid.
That on or about the 3d day of June, 1857, in consideration of the said indebtedness, the said defendant in writing, under his hand, promised to pay the said note, but the said defendant has not yet paid the said note, or any part thereof.
Wherefore the plaintiff demands judgment against the defendant, for, &c.
alleged as the cause of action, and damages claimed for the breach of
The decision in Butler v. Mason, above referred to, is adverse to the case of Genet v. Tallmadge (1 Code. R. N. S. 346.) It is contrary, also, to the principle laid down in Bracket v. Wilkinson (13 How., 102), holding that a complaint might properly anticipate and avoid a defence of payment. Precisely the same rule would enablo the plaintiff, in all cases, to anticipate in his complaint, and avoid the possible defence of the statute of limitations; and I see no good reason why this may not be allowed, though perhaps not absolutely necessary. (See Lefforts o. Hollister, 10 How., 383 ; People v. Arnold, 4 Comst., 508; Pleadings, 268, 269, 330, 689.)
1 The new promise should be alleged to be in writing ( section 110, Code ), or facts averred to show some payment of principal or interest, otherwise the promise is unavailing. ( Pleadings, 268, 329, 330.)
It has been held, under the Code, that when a memorandum or writing is necessary to the validity of a promise, it must be averred in the complaint that the promise was in writing. ( Pleadings, 267, 330; Thurman v. Stevens, 2 Duer, 609; Lervy v. Shaw, 2 Duer, 626.) A different rule, however, has been recently recognized in the Supreme Court, in the case of Livingston o. Smith and others ( 14 How., 490), in which it was held that it was not essential that the pleading should show affirmatively that the agreement (to purchase or convey lands) was in writing. It will be assumed to be an agreement having a legal existence.
The better and safer course, however, in all these cases, notwithstanding this decision, is to allege the fact of the agreement being in writing.
SECTION 164 OF
(10.) ACTIONS FOR LIBEL AND SLANDER.
For verbal slander.
SUPREME COURT - ALBANY COUNTY.
Abijah T. Jacobs
The plaintiff complains of the defendant and alleges the following facts constituting his cause of action :
That on or about the day of — at the, &c., the defendant, irftending to injure this plaintiff in his good name, fame and credit, and to bring him into public scandal and disgrace, and to cause it to be suspected and believed by his neighbors, and other citizens of the vicinity, that said plaintiff was guilty of the offences and misconduct hereinafter mentioned and charged upon him, in a certain discourse, which said defendant then and there had in the presence and hearing of one A. B., and divers other citizens, falsely and maliciouslyspoke of and concerning the plaintiff these false, malicious and defamatory words following, that is to say:
1 The old forms in slander are, that the defendant “contriving and wickedly and maliciously intending.” This is altogether unnecessary, and indeed it seems unnecessary to set forth any motive or intent at all in words actionable per se; but a simple allegation that the defendant falsely or wrongfully spoke the words, &c., would, no doubt, be sufficient. As to what a complaint should contain in an action of slander, see Pleadings, 271-274.
2 The complaint must show that the words were spoken in presence of some person or persons. (Pleadings, 274.) It must also show a malicious intent in the defendant (1 Chit. Pl., 428 – 438), and the above allegation is, no doubt, sufficient for that purpose.
1 By section 164 of the Code, this general allegation, in a complaint in slander or libel, renders it unnecessary to state any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose.
That is to say, in all cases where the application of the words spoken to the plaintiff is uncertain, and they can be construed to apply to him only by reference to certain other allegations or facts, it is not necessary to insert in the complaint those extrinsic allegations which show that they were intended to apply to the plaintiff, but this general averment is sufficient. Thus, for example, as in the above precedent, the slanderous words alleged are not in themselves necessarily applicable to the plaintiff; and under the old rules of pleading an averment was necessary that the plaintiff, at the time, lived " in the white house just across the bridge," and that a watch had previously been taken from the person mentioned in the complaint, &c., in order to point the language made use of directly to the plaintiff, to the exclusion of any other person. But by the Code it is now sufficient merely to allege in the pleading that the words were spoken “concerning the plaintiff," and if that allegation is denied in the answer, the plaintiff is bound to establish, on the trial, the facts showing that they were so spoken.
It is supposed that this is the only change that the Code has made in this respect. Thus, if the words themselves are so ambiguous or doubtful as to render the proof of extrinsic facts necessary to show them actionable at all, the necessity of stating these facts by an explicit averment is precisely the same as it has always been. The words, “ You swore false," “ He swore to a lie,” &c., standing alone, will not support an action, without a colloquium showing that the words referred to material testimony in a trial or other legal proceeding; because, as matter of law, they do not impute a crime punishable in a temporal court, for a man may swear false without taking an oath in any court, and may swear false in a court of record, in a point not material, without incurring the guilt of perjury. (See Pike v. Van Wormer, 5 How., 175; 6 How., 99; Kinney v. Nash, 3 Coms., 177; see, also, Pleadings, 271, 272, and cases there cited ; Blaisdell v. Raymond, 14 How., 265; Caldwell v. Raymond, 2 Abbott, 193.)
“ The man who stole Mr. Brown's watch has been discovered; he (the plaintiff meaning) lives in the white house just across the bridge. He (the plaintif meaning) is a great scoundrel and has done a great many other mean things ;' and I have no doubt but that he (the plaintiff meaning) is the thief, and stole Brown's watch.” . By means of the speaking of which false, malicious and defamatory words, the plaintiff has been and is greatly injured in his good name and credit, and brought into public scandal and disgrace amongst his neighbors and the public.?
Wherefore the plaintiff demands judgment against the defendant for the sum of $2,000 damages, besides costs.
1 The plaintiff need not select out of the whole conversation those expressions only which involve the slanderous charge; but may allege all that was said at the time, that, when proved, the jury may be able to determine what was intended. (Deyo v. Brundage, 13 How., 221 ; 20 Wend., 690.) A statement of the tenor and effect of the words complained of is bad pleading. The words spoken should be stated. (Forsyth v. Edmiston, 5 Duer, 653.)
2 If a libel or slanderous words be of themselves actionable, the plaintiff may recover although no special damage be stated or proved. But where the libel or verbal slander is not in itself actionable, and the action is sustainable merely in respect of special damages, they must be stated. The special damage alleged must be the legal and natural consequence of the words spoken, and it must be particularly specified in the complaint. (1 Saund., 243; 3 Espn., 133; 8 East., 3; 8 T. R., 130; 2 John., 115; 10 John., 281 ; 20 Wend., 225; 1 Wend., 506; 13 Wend., 253.)
A general averment of loss of customers is not a sufficient allegation of special damage, and no proof can be given under it. ( Tobias v. Harland, 4 end., 537.) The customers lost must be named in the complaint, and the plaintiff cannot prove the loss of others; and he must show that the loss is wholly attributable to the words spoken by the defendant. (Hallock v. Miller, 2 Barb., 630. )
For a libel.
SUPERIOR COURT-CITY OF NEW-YORK.
Charles T. Shelton
agt. Hiram Fuller.
The complaint of the plaintiff shows to this court:
That on or about the 6th day of July, 1854, the defendant, Hiram Fuller, was the editor, proprietor and publisher of a certain newspaper, printed and published in the city of New-York, under the name of the Evening Mirror, and that on or about the said day, the said defendant printed and published in the said newspaper, the Evening Mirror, a false, malicious and defamatory libel, hereinafter set forth, of and concerning the plaintiff, and against his good fame and character.
That previous to the day last mentioned, the plaintiff had been a trustee and manager, and the president, of the Empire Stone Dressing Company, a corporation existing by and under the laws of the State of New-York, and that he was duly elected by the stockholders thereof, but that on the said 6th day of July, 1854, the plaintiff was not the president of said company.
That previous to the above mentioned day, Robert Schuyler, of said city, as president of the New-York and New Haven Railroad Company, was reported to have committed great frauds upon said last mentioned company, and to have fraudulently converted to his own use, embezzled and squandered the moneys of said corporation, and to have fraudulently issued and forged certificates of stock