The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-12-27

New York Herald
SUPERIOR C0URr-aENEY1, TERM.
BEFORE JUSTICES Bosworth, F.ofinan, slosson and
Woodiuf.
D.cAAsEH' bo1-E 4,oord b. Wesley, respondent,
against James Corr -, Rsnn,n Nv the Court, Bos-
WIN, oussioe' Section l64 of the Code declares
.na' !" ." action for libel or SANDER, it shall not
~ neee ary to state in the complaint any extrnsic
:. for the purpose Of showing the application TO
.ne plaintiff Of the defamatory matter out OF which
the Of action arose; but it shall be sufficient
to state generally that the same was spoken or pub
sbed concerning the plaintiff and if such allegation
be controverted, the PLAINTIFF shall be bound to es
tabsh, on trial, that Il was SO spoken or published"
The complaint in this action states that the defama
tory matter was published "of this plaintiff whether
the extrnsic facts alleged for the purpose Of apply
ing to the plaintiff each either OF the matters sup
posed to be lbellous Of themselves and alone suf
fcent it is unnecessary to decide. 1t is competent
and concerning himself, and upon demurrer to the
complaint it must be assumed that he can do
Each of the hbellous imputations contained in the
published article must, therefore, upon demurrer
to the complaint, be deemed to have been published
OF the plaintiff, because the complaint SO AYERS.
That mode of pleading is allowed by the Code The
allegation is material and sufficient, and its truth
is admitted by the demurrer. The article COM
mences with an account of the stock operations of
the proprietors Of the Daily Times of whom the
plaintiff is alleged in the complaint to be From
that and its comments upon it, the article passes to
1.-The Valley Bank Swindle," the profits Of which
stated to be between 5000 900 and $500 000 The
article states that the Times proprietors got but
about one-fourth "of the plumber" They fur
nished the whole capital, which was small,
for "onefourth OF the profits" The Valley
Bank exploded sooner than was intended" ut was
the intention of its onginators to get out circua-
ton Of half million before the collapse, but
OF the machinery at work gave way and brought the
concern suddenly to dead lock.' 1t may be con.
coded that nothing contained in this article is abso
lutey inconsistent with the idea that neither of the
proprieters of the Daily Times concerned in orgi
mating the Valley Bank, or in its management or was
party any plan intent to defraud the public At
the same time we not prepared to say that it may
not be fairly held to that the proprieors of the
Times were to furnish the whole capital which was
to be small and inadequate, and that they, before
the bank was put in operation, agreed to do this,
expecting and intending, in common with those
having its immediate management that half mil
lion Of dollars Of its notes should be issued which
were not to be redeemedsand that they should re-
ceive onef0uTth of the whole sum of which the pub
lie might be plvpasysd, for a ,Ahing capital enough
t ~ euei sucn !. purpose and by such means. We
WYNN ...erefore, that the demurrer was rightfuly
overruled. Whether it was frivolous or not Is not
the question to be decided on an appeal from the
order U.averty Griswold, IL Leg. Obs. r., 346)
If correctly decided the merits, it should not be
not frivolous. The order appealed from must be
affirmed, with $40 costs.
This was an order made at special term, by
Slosson, j., overrulng the demurrer, on the ground
that il was frivolous From this the defendant ap-
pealed to the general term.l