
    Theodore A. Bingham, Appellant, v. William J. Gaynor, Respondent.
    First Department,
    December 17, 1909.
    Libel—pleading — allegations not irrelevant—facts showing malice— standing of plaintiff in community — punitive and general damages.
    An allegation in a complaint for libel stating that the defendant was apprised by the plaintiff of the truth of the . matter before the publication of the libel " relating thereto, should not be stricken from the complaint as irrelevant, for it tends to show malice.
    In order to entitle a plaintiff suing for libel to punitive damages he must allege and prove facts showing express malice as distinguished from the legal malice which the law implies from the publication of false defamatory matter. Neither should allegations respecting the official position held by the plaintiff at the time of the libel be stricken from the complaint, for his prominence in the community is relevant on the question of general damage.
    If allegations in a pleading .have any bearing on the subject-matter of .the litigation, they should not be stricken out as irrelevant and redundant.
    Appeal by the plaintiff, Theodore A. Bingham, from an order of the Supreme Court, made at the Rev/ York Special Term, and entered in the office of the clerk of the county of Rew York on the SR tli day of September, 1909,striking out portions of the complaint as irrelevant, redundant and, in part, scandalous.
    
      Austen-G. Fox\F. C. Crowley with him on the brief], for the appellant.
    
      Cha/rles II. Hyde, for the respondent.
   Houghton, J.:

The action is for libel, and, on motion of the defendant, many. allegations of the complaint were stricken- out as irrelevant.

It is unnecessary to analyze the .complaint. It is sufficient for us to say that we are of the opinion that the allegations stricken out were material as either tending to show actual malice or in aggravation of damages.

The plaintiff had a right to aver, if he saw fit, that the defendant was apprised by him of the true state of affairs with respect to Duffy before he published the alleged libel, for the purpose of showing personal ill-will or desire to do harm. 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 must allege and prove facts which show express malice as distinguished from the legal malice which the law implies from a publication of false defamatory matter. (Carpenter v. N. Y. Evening Journal Pub. Co., 111 App. Div. 266; Crane v. Bennett, 177 N. Y. 106.)

On the trial the plaintiff would have the right to prove, and it was, therefore, proper for him to allege, the position which he held at the time the alleged libel was published for the purpose of showing his standing and prominence in the community as bearing upon the hurtful tendency of the libel and the general damage to which he was exposed. (Morey v. M. J. Association, 123 N. Y. 207; Saunders v. Post-Standard Co., 107 App. Div. 84.)

The allegations stricken • out being either necessarily averred or proper to be introduced as proof by the plaintiff, the defendant could not be aggrieved by permitting them to remain in the complaint. (Younger v. Duffie, 26 Hun, 442.) If allegations of a pleading have any bearing on the subject-matter of the litigation they should not be stricken out as irrelevant atid redundant. (Dinkelspiel v. N. Y. Evening Journal Co., 91 App. Div. 96.)

It follows, therefore, that the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs .and disbursements, and motion denied, with ten dollars costs.  