Opinion
November 5, 1920.
Winfield L. Morse [ John J. Sinnott with him on the brief], for the appellant.
Charles A. Dryer, for the respondent.
The learned counsel for the defendant moved as if the complaint was for a libel. I find no indication that such was the view of the learned Special Term. And I am of opinion that it was not necessary to construe the pleading thus. The complaint may be read as in an action on the case, though the words be not defamatory in their nature. ( Morasse v. Brochu, 151 Mass. 574; J.A. R.A. Reid v. Prov. Journal Co., 20 R.I. 120, 124.)
As the learned Special Term suggests, the defendant may well ask a bill of particulars, for special damages are pleaded. ( Mussinan v. Willner Wood Co., 69 App. Div. 448; Post-Express Printing Co. v. Adams, 55 Hun, 35; Royle v. Goodwin, 98 App. Div. 95.)
The order is modified by striking out the provision for $10 costs of the motion, and as modified it is affirmed, with $10 costs and disbursements.
MILLS, RICH, PUTNAM and KELLY, JJ., concur.
Order modified by striking out the provision for ten dollars costs of the motion, and as modified affirmed, with ten dollars costs and disbursements.