
    Mendel Singer, Appellant, v. New York Times Company, Respondent.
    
      Libel—a complaint setting out the alleged libelous article in full and alleging that it ‘ is false and defamatory is sufficiently definite and certain—a bill of particulars as to that part of the alleged libel which the plaintiff intends to allege was false, - denied.
    
    The complaint in an action of libel,-.based upon a publication which charged the' plaintiff with .having attempted to commit the crime of arson,-after setting out .the article in full, averred “ that the said matter so printed and published as aforesaid was false, libelous and defamatory, and as plaintiff is informed and believes was maliciously, wantonly and recklessly published.”
    On an application by the defendant for a bill of particulars the defendant submitted an affidavit setting forth that it was advised by counsel -that it had a defense upon the merits; that it knew that some of the statements contained in the article were true and that it did not believe that any of them were untrue, but that it had no means of ascertaining which of them the plaintiff claimed to be false; that “ the defendant intends-by its answer- herein to justify the publication of so much of said article as is alleged to be libelous in regard to the plaintiff, and also to plead that so much of said article was published under a reasonable belief in its truth; * * * that in order properly to prepare the answer herein so as to clearly present the issues intended to be raised thereby, and to avoid unnecessary prolixity and the insertion of much irrelevant matter, it will be necessary that the complaint herein be made more definite and certain by designating what portions of said alleged libelous article are alleged to be libels upon the plaintiff, and in-what respect they are alleged to be false, or that a bill of particulars designating the same be served.”
    
      Held, that, as the affidavit stated that the defendant had a defense upon the merits and that it was able to justify, in part at least, the publication of the article, a bill of particulars was not necessary to enable the defendant to answer;
    That as the complaint set out the article in full and then averred that the whole was false and defamatory, it was sufficiently definite and certain.
    Appeal by the plaintiff, Mendel Singer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1902, directing him to serve a bill of particulars.
    
      Frank E. Blackwell, for the appellant.
    
      Alfred A. Cook, for the respondent.
   Hatch, J.:

This action is brought to recover damages for the publication of an alleged libel, which the complaint sets out in full. The article as published charges the plaintiff with an attempt to commit krson in setting fire to a building, 101 Mott street-, in the city of New York, where the plaintiff carried on the business of a manufacturer and dealer in furniture. The article in question is headed, “ Attempt tp Eire a Building,” and then follows a description of the circumstances surrounding the act, the putting out of the fire by the firemen, the arrest of the plaintiff and his lodgment in the station house. After setting out the article the complaint avers “ that the said matter so printed and published as aforesaid was false, libelous and defamatory, and as plaintiff is informed and believes, was maliciously, wantonly and recklessly published.”

It appears, therefore, by the terms of the complaint, that the article is libelous per se, and that the charge in the complaint is that the whole of it was false, libelous and defamatory. This averment cannot be construed as relating to any particular part of the article; it embraces the whole, and charges as to it that the article in its entirety is false and defamatory.

The defendant, through its president, makes an affidavit, as the basis of its motion, setting forth that it has a defense upon the merits of the action, as it is advised by its counsel; that it knows some of the statements contained in said article are true, and does not believe that any of them are untrue, but that it has no means of ascertaining which of them plaintiff claims to be false ; that the defendant intends, by its answer herein, to justify the publication of so much of said article as is alleged to be libelous in regard to the plaintiff, and also to plead that so much of said article was published under a reasonable belief in its truth * * *; that in order properly to prepare the answer herein, so as to clearly present the issues intended to be raised thereby, and to avoid unnecessary prolixity and the insertion of much irrelevant matter, it will be necessary that the complaint herein be made more definite and certain by designating what portions of said alleged libelous article are alleged to be libels upon the plaintiff, and in what respect • they are alleged to be false, or that a bill of particulars designating the same he served.”

It is apparent from this affidavit that the knowledge which the defendant desires, either by definite or certain statement, or by a bill of particulars, is as to that portion of the article which the plaintiff-deems to be false, and that portion which he deems to be true. This is the first time that our attention has been called to a -case where the defendant seeks an order compelling the plaintiff to particularly specify the portion of his complaint to which the defendant may plead the truth in justification. If such practice is permissible, it will very much simplify the position of defendants in serving an answer. For if they can induce the court to compel the plaintiff to specify the portion of the article which is true, if such be the fact, the road to a justification, to that extent, is made clear, open and easy. We know, however, of no rule which requires a plaintiff to inform a defendant in an action qf libel to-what portion he may plead a justification; and that is what the order in the present case accomplishes.

In addition to this, it appears that the defendant does not need a bill of particulars to enable it to answer. It sets forth an affidavit of merits, and also that it is able to justify, in part at least, the truth of the article. Under such circumstances, a bill of particulars is not necessary to enable the defendant to answer. (Wolff v. Kaufman, 65 App. Div. 29.) Nor is there any need that the plaintiff make his complaint more definite and certain, as it is already fully complete in such particulars. It sets up the whole of the article claimed to be libelous and then avers that the whole is false and defamatory. Words could not make it more definite.

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

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

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