
    (34 Misc. Rep. 634.)
    HAUGHIE v. NEW YORK & N. J. TEL. CO.
    (Supreme Court, Special Term, Kings County.
    April, 1901.)
    Malicious Prosecution—Complaint—Pleading—Evidence.
    Where, in a complaint for malicious prosecution, plaintiff alleges publication in a certain newspaper of his arrest upon the charge of the defendant, and setting out the charge itself and the newspaper articles in full, such matter must be stricken from the complaint as irrelevant.
    Action by James Haughie against the New York & New Jersey Telephone Company. Motion, under Code Civ. Proc. § 545, to strike out irrelevant matter from the complaint.
    Granted.
    Edwin B. Fisk, for plaintiff.
    Alexander Cameron, for defendant.
   GAYNOB, J.

The action is for malicious prosecution. The allegations of the complaint of the publication in a newspaper of the arrest of the plaintiff upon the charge of the defendant, and of the charge against him, and setting the articles out in fulleare irrelevant. If the defendant caused the publications to be made it may be sued for libel; but the matter is not pleaded as a cause of action; nor could the two causes of action be united. Code Civ. Proc. § 484. If the fact of publication be competent as evidence to show the extent of the publicity, and hence of the plaintiff’s damage (about which I say nothing), that is no reason for pleading it. Evidence should never be pleaded, although some timid ones in our learned profession are of late made uneasy on that head by the learned reporter’s catchwords to his learned headnote to the learned opinion in Stokes v. Polley, 164 N. Y. 266, viz., “Evidence—When Admissible Although not Pleaded.” But a learned profession should not swerve for such inadvertences, wherever found.

The motion is granted with $10 costs. 
      
       But see 58 N. E. 133.
     