as the foundation of the com- Order affirmed. PARTIES. N. Y. SUPREME COURT. GENERAL was authorized by § 757, providing Charles A. Jackson, for respt. Held That if such an application could be successful the effect would be to join two distinct and divisible grounds of action, each of which would affect only a portion of the defendants in the suit. That the form of the statute, as well as the usual course of legal John W. Green, applt., v. John proceedings, contemplate a sepaMartine, respt. Decided May 27, 1882. The executors and devisees of a decedent cannot be joined as defendants in an action brought to collect a debt which it is expect ed that the personal estate will be insufficient to satisfy, but separate and distinct actions should be brought against them. Appeal from order denying a motion made for leave to revive and extend this action so as to make the devisees of Theodore Martine, deceased, defendants. The action was prosecuted for the recovery of a debt owing by Theodore Martine. Before its completion he died, leaving a will appointing John Martine and others his executors and trustees. It was afterwards revived by an action brought for that purpose by making them defendants in this suit for the recovery of the debt, and, upon the expectation that the personal estate would prove insufficient to pay it in case of its recovery, an application was made further to revive and extend the action by making the devisees. defendants. It was claimed by plaintiff that such a proceeding VOL. 14.-No. 20, rate and distinct action for the purpose of attaining these different ends. That the scope and object of each is separate and distinct and | each is to be established by different measures of proof, and that a unity of such rights of action in the same legal proceeding would be anomalous and incongruous. That this case differs from 13 Abb., 11, and 78 N. Y., 487, in this respect, that in both those cases the parties against whom the amendments. were allowed were defendants in the actions in the same character, both before and after the amendments, and the claims allowed to be added were of the same nature as those upon which the actions had previously been prosecuted, while in this case they are distinct and separate in their legal character. Order affirmed. Opinion by Daniels, J.; Brady, J., concurs. LACHES. before whom the motion was N.Y. SUPREME COURT. GENERAL heard, it appears that the same TERM. FIRST DEPT. Rensselaer H. Winchell, respt., v. Geo. W. Martin, applt. Decided May 27, 1882. Where a plaintiff allows an action to become stale by reason of the great and unusual length of time he permits it to slumber after issue joined without taking any steps to bring the same to trial, he cannot plead laches in defense of a motion made by defendant demanding a bill of particulars. Appeal from an order denying the defendant's motion that the plaintiff furnish a bill of particu lars. This action was brought to recover damages for the alleged seduction of plaintiff's wife. In January, 1870, the plaintiff noticed the cause for trial. Since then neither party has moved, until February, 1882, when plaintiff noticed the cause for trial for the March Circuit. On the day set down for trial the defendant procured an order without any stay for the plaintiff to furnish a bill of particulars within two days, stating the particular times and places at which the plaintiff expected to prove the different acts of adultery complained of, or show cause on the day designated by the order. On that day the plain- ¦ tiff read an affidavit in opposition to the motion, but he did not state was denied because of the laches of the defendant. Platt & Bowers, for applt. B. Doran Killian, for respt. Held, We are unable to discover any good and satisfactory reason for refusing a bill of particulars in this cause because of delay on defendant's part, such delay having no way embarrassed the plaintiff, as we can see, and he can as readily comply with the demand now as at any time since the action was commenced. In this particular instance the plaintiff's action had become stale by reason of the great and unusual length of time he had permitted it to slumber, after issue was joined, without taking any steps to bring the same to trial. The defendant might well have regarded the further prosecution of the action abandoned, and for that reason omitted to take steps preparatory for trial. At least the laches were as great on the part of the plaintiff as the defendant. For the propriety and justice requiring the motion, see 2 Paige, 180; 59 N. Y., 176; 21 Hun, 457. The order of Special Term is reversed, without costs. Per curiam opinion. LIBEL. PLEADING. TERM. FIRST DEPT. that he was unable to furnish in N. Y. SUPREME COURT. GENERAL formation of the nature asked for, and did not present excuses for not bringing the cause to trial. The motion was denied. In a memorandum made by the justice Maria de la Salud Oviedo Younger, applt., v. Mary Ann Duffie, respt. Decided Feb. 3, 1882. A complaint in an action for libel alleged that Held, Error. In an action for libel, where no direct allegation of defendant after being sued for similar sland malice can be made as an averment, erous charges retracted them in open court and thereafter maliciously, &c., swore to and caused to be read in court and placed on the files of an office open to all the public the defamatory matter set up. The al legations as to the former suit and retraction were stricken out as irrelevant and scandalous. Held, Error; that the averments were inserted to show malice, which would be necessary if the communication should be held to be privileged; that defendant was not aggrieved by its presence and while there might be a doubt as to the propriety of putting it in this form that doubt is sufficient to save the matter from being stricken out as redundant or irrelevant. Appeal from order striking out certain portions of the complaint as irrelevant and scandalous. Action to recover damages for an alleged libel. The complaint alleges that defendant, after having been sued in another court by plaintiff for similar alleged slanderous charges and after having in said suit in open court retracted the same, did maliciously, purposely and wrongfully, and, as plaintiff is advised, without relevancy, materiality or pertinency utter by means of writing, swear to and publish and cause to be read in court and placed on the files of an office in the City of New York, open to the public, the false and defamatory matter set up in the complaint. The allegations in reference to the commencement of a suit in another court and the re that the words published are a libel is a sufficient allegation of falsehood and malice, 19 N. Y., 173; and in an action for slander, where the statement is presumptively privileged, there must be a sufficient averment of malice to sustain the action, and a general averment that the words were spoken falsely and maliciously is a sufficient averment of malice. 18 How. Pr., 550. The averment which was stricken out was evidently inserted for the purpose of showing malice on the part of defendant and would be competent evidence on that subject on the trial. If the communication should there be determined to be a privileged one, then it would be essential to the success of plaintiff that she should prove malice on the part of defendant, 28 N. Y., 327; 81 id., 124; Moak's Underhill on Torts, 146; and that would be prima facie established by showing the facts stated in the averments stricken out. It would certainly be evidence bearing upon the subject and would be admissible. It would relate to an issue, viz. : the existence of malice. Section 545 of the Code of Civil Procedure is similar to § 160 of the Old Code, and the rule in reference to motions made under its provisions was that it must appear in support of the motion that some traction alleged were stricken out injury would result to the moving on motion of defendant. Emmett R. Olcott, for applt. F. R. Coudert and John N. Lewis, for respt. party if the matter sought to be expunged was suffered to remain. The moving party must be aggrieved by the retention of the re dundant or irrelevant matter in the EJECTMENT. pleading. 2 Wait's Pr., 483, and N.Y. SUPREME COURT. GENERAL cases cited. And where there is a doubt as to the necessity of inserting such matter the motion was invariably denied. 2 Wait's Pr., 484, and cases. In this case the allegation which was stricken out is in effect an allegation of malice and the defendant being advised of this element in that form, although it may contain what might otherwise be regarded as evidence of malice, is not aggrieved by its presence in the complaint. It would seem to be advantageous and not otherwise to defendant to advise her that the circumstance mentioned in the averment would be resorted to in order to establish the ingredient of malice, which would be essential to plaintiff's case in the event above referred to. There is no doubt of the propriety, for the reasons assigned, of making the charge of malice in the complaint, and as there may be doubt as to the propriety of put ting it in the form in which it seems to be made that doubt is sufficient to save it from being stricken out as irrelevant or redundant. If it were not that the allegation is so blended with the element of malice it might be stricken out perhaps with propriety as evidence of the fact which must be established, but not entirely and strictly on the ground that it was irrelevant or redundant. Order reversed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. TERM. FOURTH DEPT. Thomas Murphy, applt., Y. Joshua S. Loomis, respt. Decided April, 1882. A party in possession of lands under a con. tract of sale, and claiming in good faith a right and title, can maintain an action of ejectment against one who wrongfully takes possession thereof without any interest in the premises. Appeal from judgment of nonsuit, and from order denying motion for new trial on the minutes. Action of ejectment. The complaint alleged that plaintiff was the lawful owner and in possession of the premises; that defendant entered into said premises and has since, continuously, unlawfully withheld possession thereof from plaintiff to his damage. The answer contains simply a general denial. In his opening, plaintiff stated that in 1856 defendant sold and conveyed to one K. 7 acres and 118 rods of the westerly end of his farm; that about that date defendant and K. established a boundary line by agreement, and that a division fence was afterwards built upon said line; that defendant occupied up to said fence until the summer of 1878, recognizing the fence as the boundary line; that K. so occupied until 1857, when he conveyed to one C., who so occupied until 1859, when he conveyed to one Knapp; that Knapp occupied up to the division fence under his deed and claim of title in good faith until he sold the land by written contract to plaintiff that said contract was in the usual form, containing covenants to convey upon payment of the consideration expressed therein, and that by the terms thereof plaintiff was to have and was in fact put into immediate and full possession of said 7 acres and 118 rods of land bounded on the west by said division fence; that he continued to occupy up to said fence, claiming in good faith a right and title until the summer of 1878, when defendant wrongfully and without his knowledge or consent removed said division fence and built a new one on a new site east. Plaintiff's counsel asked to present proofs of the foregoing facts to the jury, but the court refused to permit the same, holding that plaintiff being in possession under a contract for the purchase of the premises, he could not maintain an action of ejectment therefor, and nonsuited plaintiff. On the motion for a new trial the court held that plaintiff could not have been nonsuited if in his opening he had claimed to recover upon proof of possession; but when he conceded that he held possession under a contract for the purchase he showed that he was in under an equitable title merely, and upon such a title a plaintiff cannot recover in ejectment; that his vendor could maintain the action. F. W. Hubbard, for applt. for plaintiff to show a right to the possession of the premises at the commencement of the suit. 3 R. S. 306, § 18; 3 Lans., 261. The answer of the defendant does not set up any title, and the complaint as well as opening placed the right of plaintiff upon a prior possession under claim of an interest in the premises, and under such circumstances the plaintiff's right to recover is supported by authority. 2 Sandf., 111; 3 Johns., 22; 4 id., 202; 10 id., 338; 16 id., 325. See also 4 Seld., 118; 3 R. S., 304, § 2, sub. 1. By the opening it appears that plaintiff not only had the right to the immediate possession, but that he was in possession "claiming in good faith a right and title" when defendant wrongfully took possession and that the possession so taken was without any interest in the land. Under such circumstances the interest of plaintiff, his prior possession as against defendant, entitled him to recover. Also held, That for the purposes of the action, as no point was raised by demurrer or upon the trial, the averment in the complaint may be assumed as equivalent to a claim of the fee and therefore a compliance with 3 R. S., 304, § 10. See & 518, Code Civ. Pro.; $$ 140, 445, Code Pro.; 7 Hun, 275. Judgment and order reversed and new trial ordered; costs to abide event. Opinion by Hardin, J.; Smith, P. J., and Haight, J., concur. |