Opinion
February 20, 1962
Order entered on April 14, 1961 unanimously modified and defendants' motion granted to the extent of (1) striking paragraphs 12 and 13 of the complaint and all references to those paragraphs in subsequent paragraphs of the pleading, and (2) striking from each cause of action all references to the coplaintiff in whose behalf the cause is not alleged against the defendants with leave to plaintiffs to serve an amended complaint within 20 days after service of order hereon with notice of entry, and, as so modified, the order is affirmed, with $20 costs and disbursements to appellants. The allegations of paragraphs 12 and 13 are irrelevant, unnecessary and tend to prejudice the fair trial of the action within the meaning of rule 103 of the Rules of Civil Practice. In characterizing the acts of defendants in publishing the alleged libel one of the paragraphs contains the statement, among others, that the publication was "sensational, yellow journalism — in subversion of every standard of honest and responsible reporting". This conceivably might be proper in a summation but it has no place in a pleading. We recognize the rule, as contended by plaintiffs, that the burden of proof is on them to establish malice in order to be awarded punitive damages (Seelman, Law of Libel and Slander, par. 366) but such a claim may be pleaded without the embellishments found in these paragraphs. (See 8 Bender's Forms for the Civil Practice Acts, pp. 482, 483, 486.) Similarly objectionable is each cause of action alleged on behalf of a named plaintiff insofar as it contains allegations relating to the coplaintiff on whose behalf the action is not brought. The result is that each cause of action of each plaintiff is alleged twice, once as part of his or her own cause of action and once as part of the coplaintiff's cause of action. This is improper. Settle order on notice.
Concur — McNally, J.P., Stevens, Eager, Steuer and Bastow, JJ.