#### Nathan Burkan, Plaintiff, *v.*Musical Courier Company, Defendant.

(Supreme Court, New York Special Term,

October, 1910.)

Libel and slander — Pleading — Complaint — Averments of malice.

Proof of prior and contemporaneous publications of tlie same libel, other than the publication declared upon, is material as either tending to show actual malice or aggravation of damages, but cannot he given unless such publications are pleaded; and allegations of suoli publications will not be stricken from the complaint.

Motion by defendant in an action for libel to require plaintiff to elect one alleged libelous statement in three of six alleged causes of action.

Wise & Seligsberg (Edmund E. Wise, of counsel), for defendant, for the motion.

Adolph Bangser, for plaintiff, opposed.

Gavegan, J.

This is a motion made hy the defendant in an action for libel to require the plaintiff to elect one alleged lihel-ous statement in three of the six alleged causes -of action pleaded in the amended complaint, and for an order striking out from each of the alleged causes of action all reference to the other libelous statements therein contained. It is unnecessary to analyze the complaint. It is sufficient to say that the -allegations sought to he stricken out -are material as either intending to s-liow actual malice or aggravation of damages. As was held hy Mr. Justice Houghton in Bingham v. Gaynor, 135 App. Div. 426, 421: *“*The plaintiff in an action for libel has the right to ask for punitive damages in addition to mere compensation for the wrong; but to entitle him to such punitive or exemplary damages he mnst allege and prove facts which show express malice as distinguished from the legal malice which the law implies from *212a publication of false defamatory matter.” Carpenter v. New York Evening Journal Pub. Co., 111 App. Div. 266; Crane v. Bennett, 177 N. Y. 106. In Stuart v. N. Y. Herald Co., 73 App. Div. 459, tbe court said: “But to entitle a plaintiff in an action for libel to give proof, tbe tendency of wbicb is to enlarge tbe character of the libel, he must set up the facts in his complaint, although the article published by tbe defendant and upon which -the action is framed is libelous *per se.”*In Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 239, the court held, and it has never been questioned, that proof will not he allowed, the purport of which is to add to the natural and legal effect of the libel as it ajipears on its face, without setting up the facts which form the basis for such addition. The court said, in that case: “I do not see that this rule is at all -altered by the fact that the article as published was libelous *per*sePresident Taft, when a member of the Circuit Court of Appeals for the Sixth Circuit, in writing the opinion for the court in Post Pub. Co. v. Hallan, 59 Fed. Rep. 530, said: “By the weight of authority, prior and contemporaneous, publications -of the same libel other than that declared on are competent evidence to show malice, whether such -other publications may themselves he made the basis of recovery in separate suits or not, and the danger of a double recovery for the same publications is to he avoided by >a caution fro-m the court that damages -are to he allowed only for the article sued -on.” This opinion was concurred in by Justice Burton (now Mr. Justice Lurton of the Supreme Court of the United States) and Justice Rocks. In Turton v. N. Y. Recorder Co., 144 N. Y. 144, 150, Mr. Justice Earl, speaking for the court, said: “ It is the prevailing doctrine that the reiteration of a libel or slander after suit brought may be proved -on the question of malice and damages, probably with this qualification, however, that the cause of action for the reiteration has been barred by -the Statute of Eimitations or that the language subsequently reiterated is for some other reason not actionable. The authorities upon this point are not harmonious. Townshend Sland. & Bib. (4th ed.) 653 *eí seq.;*Stuart v. Lovell, 2 Stark. 84; Thomas v. Croswell, *2137 Johns. 264; Inman v. Foster, 8 Wend. 602; Keenholts v. Becker, 3 Den. 346; Root v. Lowndes, 6 Hill, 518; Johnson v. Brown, 57 Barb. 118; Thorn v. Knapp, 42 N. Y. 474; Titus v. Summer, 44 id. 266; Bassele v. Elmore, 48 id. 561; Frasier v. McClosky, 60 id. 337; Daly v. Byrne, 77 id. 182; Cruikshank v. Gordon, 118 id. 178. Ho case holds that a repetition of a libel or slander after suit brought is in its nature not competent evidence on the question of malice and damages and whenever it has "been excluded as evidence it has always been upon the ground that it was an independent canse of action, and thus, if such evidence were received, that there would he danger of a double recovery.” The tendency of the latest decisions has been to support the views expressed by President Taft, in Post Pub. Co. v. Hallan, 59 Fed. Rep. 530. The case of Cerro De Basco Tunnel & Min. Co. v. Haggin, 106 App. Div. 401, is not in point, for the reason that it was held in that case that, owing to the failure to mention any specific dates on which the libel or libels ware published and the slander or slanders were uttered, it could not be determined whether the plaintiff intended to state more than one cause of action. Hor is the case of Fisher v. New Yorker Staats-Zeitung (114 App. Div. 824) in point, for the reason that there is nothing to show that the alleged libels or either of them was set up for the purpose of showing malice.

Motion denied, with costs.