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been, and still is in the situation of keeper of the Greene county poor-house and buildings connected therewith, and had been employed by the superintendents of the poor of said county as such keeper aforesaid, and in such employment has been and was deriving profits and emoluments for the support of himself and family.

That said superintendents of the poor had vested in the plaintiff, as such keeper, the power of governing said county house and superintending its general management; and it became and was the duty of the said plaintiff to provide reasonable and kind attention for all such infirm and invalid paupers as were in and about said house, and to furnish care, attention, bedding and all things necessary and suitable for their comfort.

That on the 4th day of March last, one Rebecca Southard, a pauper, and an invalid inmate of said poor-house, was found dead in the said county house, or in a building called the hospital, connected therewith, under the care of said plaintiff, as keeper aforesaid.

That said plaintiff had always conducted himself with skill, attention, care and vigilance as such keeper.

That the said defendant, well knowing the premises, but intending to injure the said plaintiff in his said employment and business, as keeper aforesaid, and to cause it to be suspected and believed that he, the said plaintiff, had conducted himself negligently, carelessly and improperly, as such keeper, on the 11th day of March, A. D. 1852, at Catskill, Greene county, published a certain false and defamatory libel of and concerning the said plaintiff, in respect to his business and employment as such keeper, and of and concerning his conduct as such keeper, and of and concerning the cause which produced the death of the said Rebecca Southard, in the form of a coroner's inquest, which said libel is substantially as follows: [Here set forth

the finding of the jury, containing the alleged libel, signed by the jurors and coroner, to the effect that the said Rebecca Southard was an invalid, confined in one of the cells of the poor-house, and came to her death in consequence of cold in her cell, and of a want of sufficient clothing, bedding and proper care and attention.]

And the plaintiff avers that, by the false libel aforsaid, the defendant meant to be understood that the killing of Rebecca Southard was occasioned by the culpable negligence of the said plaintiff in confining her improperly in a cold cell of the said county poor-house, and not furnishing her with sufficient clothing, bedding and proper care and attention, and that the said libel was so understood by those in whose presence and hearing the said libel was published; by means whereof the plaintiff is suspected to be guilty of the crime of manslaughter, and has been otherwise greatly damaged in his reputation and in his said business.

2d. And for a second and further cause of action the plaintiff shows, that on or about the 1st day of April, A. D. 1852, at Cairo aforesaid, the said defendant, in a certain discourse which he, the said defendant, then and there had in the presence and hearing of divers good and worthy citizens, of and concerning the said plaintiff, and of and concerning his said business as keeper of the county poorhouse, and of and concerning the cause of the death of Rebecca Southard, falsely and maliciously spoke and published the several false, scandalous, malicious and defamatory words following, viz: "She (said Rebecca meaning) died from Green's (said plaintiff meaning) neglect;" "she froze to death;" "it ought to be published, and I will publish it;" "some people will have it she did not freeze to deathI know she (said Rebecca meaning) froze to death;" "he (said plaintiff meaning) starved the paupers to death;"

"paupers, speak up, if you have any grievances to make known;" "I (said defendant meaning) know he (said plaintiff meaning) starved the paupers;" "I (said defendant meaning) will follow Green to the last."

And the plaintiff avers that, by the words aforesaid, the defendant insinuated and meant to be understood as charging the plaintiff with the crime of manslaughter, in causing the death of the said Rebecca Southard by his culpable negligence and misconduct, and that plaintiff was guilty of neglect of duty in his employment as such keeper, and was so understood by those persons in whose presence and hearing the said words were uttered. The plaintiff also avers that, by means of the premises, his mind and health have been so impaired as to prevent him from attending to his affairs as he otherwise would, and he has also been subject to expense for medical aid.

Wherefore the plaintiff demands that compensation in damages for the said injuries may be made to him in the amount of $5,000.

L. TREMAIN,

Plaintiff's Attorney.

(11.) OTHER ACTIONS FOR WRONGS, INCLUDING INJURIES TO RELATIVE RIGHTS, PROPERTY AND PERSON.

(No. 61.)

For damages occasioned by the falling in of a privy rendered insecure by defendant's negligence, the plaintiff being a servant in his employ.

SUPREME COURT-COUNTY OF ALBANY.

Elizabeth Ryan, by James Ryan, her guar

dian,
agt.

Thomas Fowler.

The abovenamed plaintiff, James Ryan, who is admitted by the said court now here to prosecute this action as the guardian of the said Elizabeth Ryan, an infant under the age of twenty-one years, to wit, of the age of fourteen, or thereabouts,1 complains:

That the said defendant, on the 14th day of October, 1853, and for a long time before that, was the proprietor and lessee, and, by himself and his servants and agents in that behalf, was in the actual use and occupation of certain buildings situated at Cohoes, in said county, known as Thomas Fowler's Mill, consisting of one large brick building, with a wheel-house and other out-buildings attached thereto, and was so used and occupied by the defendant in the business of knitting and manufacturing

1 As to the proper mode of averring the appointment of a guardian of an infant, see note 2, ante, p. 283. Within the decision of Halbert v. Young (13 How., 413), the above allegation would not, perhaps, be sufficient.

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certain woolen goods, the machinery whereof being at the time aforesaid driven by water power.

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That during the period last aforesaid, said defendant kept and maintained, as a necessary apartment, to and for the use of all females employed in said mill, a certain wooden structure, designed, used and occupied as a privy; that the same was situated on the upper part of said wheel-house, immediately over the water-wheel, and attached to and communicating by a door with the said main building.

That said Elizabeth, during the period aforesaid, was employed in said mill by said defendant. That it then and there was the duty of said defendant, his agents and servants, to use due and proper care for the personal safety of said Elizabeth, as well as of all the other operatives in said mill; that it was the duty of said defendant, his agents and servants, to see that said privy was kept in proper repair and safe condition, for the purpose for which it was being daily used, and to see that the same was properly secured, so as to prevent the same from falling when used for the purpose aforesaid.1

Nevertheless the said wooden structure, designed and used as aforesaid, became and was, during the period last aforesaid, through the negligence and want of proper care on the part of said defendant, his agents and servants, decayed, rotten and insecure, insomuch as to be wholly unsafe for the purpose aforesaid.

1 These allegations of duty are entirely superfluous, they being mere legal conclusions, and are unavailable for any purpose. The facts from which the court can see the legal obligation need be stated only. (Casey v. Main, 14 How., 163; S. C., 5 Abbott, 91.) Unless the duty results from the facts stated, a complaint simply stating that it was the defendant's duty, &c., is bad in substance. The allegation of duty is superfluous where the facts stated show a legal liability, and useless, where they do not; and such was the rule even before the Code. (Pleadings, 283, 284.)

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