Opinion
Argued April 2, 1945
Decided July 19, 1945
Appeal from the Supreme Court, Appellate Division, Second Department, HOOLEY, J.
Arnold J. Brock, William P. Balaban and Bernard Noskin for appellant.
Francis H. Horan, Henry Cassorte Smith, Charles Carroll Kieffer and Carolinda Waters for respondents.
This is a libel action, the substance of plaintiff's grievance being that in an article and an editorial published in defendant's newspaper, on July 14, 1942, plaintiff, as he claims, was accused of having been disloyal to the Government of the United States and its war effort. In the complaint are set forth two alleged causes of action but each such cause of action is based on the same two July 14, 1942, publications. In each cause of action there are pleaded four separate items of alleged special damage, also general damages, those statements of damage, special and general, being the same in each count. At Special Term defendant moved under section 476 of the Civil Practice Act, to dismiss on the pleadings both causes of action excepting those paragraphs which aver special damage, defendant's claim in this connection being that the article and editorial were not libelous per se. As another branch of that motion, defendant, under rules 113 and 114 of the Civil Practice Act, prayed for partial summary judgment dismissing, as to each cause of action, those paragraphs thereof which put forth the four claims of special damage, defendant urging that as to those items of damage there were, in the light of documentary proof presented by defendant on the motion, no triable issues of fact. If the motion had been granted as to both its parts, the result would have been a dismissal of the entire action. Special Term denied the motion in all respects.
The Appellate Division held that the publications were not libelous per se and that, accordingly, the complaint was insufficient to sustain any recovery of general damages. As to the claimed special damages, the Appellate Division was of the opinion that as to one item thereof, set forth in the paragraph of the complaint numbered "8" there was no triable issue of fact, so that the particular item could not properly remain in the complaint. The Appellate Division's order modified the Special Term order by inserting therein provisions "granting the motion to the extent of granting judgment on the pleadings dismissing the two causes of action insofar as they concern general damages", also "granting partial summary judgment dismissing the claimed special damages under paragraph `8'". Judgment was entered accordingly and plaintiff appealed to this court.
In Manko v. City of Buffalo ( 294 N.Y. 109), we held that an honorably discharged veteran, seeking as damages for the denial by the city of his civil service preference, and attempting in his complaint to set up his lost salary as one cause of action and his legal expenses as another, had in fact a single cause of action only, despite the manner of pleading it. In that case we held that the Appellate Division had erred in granting a judgment which dismissed the second cause of action only. "By dividing the damage", we said, "one cannot divide a single cause of action." (p. 111). Essentially, the Appellate Division in the present case has done what it did in the Manko case. The judgment entered on the Appellate Division's order in the present case is a final judgment dismissing for all purposes certain alleged items of damage set forth in the complaint, leaving standing other items of damage in the same complaint. Such a final judgment is, as we held in the Manko case, unauthorized. Inappropriate and insufficient allegations of damage in a complaint may be stricken out on order, but on such an order there cannot be entered a judgment which has the effect of severing those allegations into a separate cause of action, when such allegations really constitute only part of the statement of damage in a single cause of action for a single wrong. Neither section 476 of the Civil Practice Act, nor rule 114 as to ordering judgment as to part of a cause of action or summary judgment as to one of several causes of action, permits the entry of a separate judgment as to such separate items of damage only (see discussion in Lowe v. Lowe, 265 N.Y. 197, 202, 203).
Since the paper entered on the Appellate Division order is in terms and in effect a judgment, we have jurisdiction to review it, and, accordingly, we do not dismiss the appeal but reverse it. In so doing we express no opinion as to the merits of the questions argued.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY, THACHER and DYE, JJ., concur.
Ordered accordingly.