App. Div. 275]

Second Department, June, 1921.

LUDOVIC PIGNATELLI, Respondent, v. THE PRESS PUBLISHING COMPANY, Appellant.

Second Department, June 17, 1921.

Libel pleading — improper to reallege in separate cause of action cause previously alleged repetition of libel may be evidence of malice - allegations stricken out as redundant - proof of actual malice in each publication.

In an action for libel in which the complaint sets forth three causes of action for three separate publications, it is improper to reallege in the second and third causes of action the causes of action previously alleged, and such allegations will be stricken out as redundant.

The repetition of a libel may be evidence of malice, but it is to be considered, if at all, in connection with the particular libel charged and repeated.

While the plaintiff may offer proof of actual malice in each publication under the allegations in his complaint, he cannot reallege and retry his separate causes of action in the manner proposed, for the practical result would be a double recovery.

APPEAL by the defendant, The Press Publishing Company, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 26th day of March, 1921, denying defendant's motion to strike from the complaint certain allegations as redundant.

Charles B. Brophy, for the appellant.

John Patterson [Herbert C. Brinckerhoff with him on the brief], for the respondent.

KELLY, J.:

The action is to recover damages for alleged libel, and the complaint contains three separate causes of action for three separate publications. Having pleaded in the first cause of action an alleged libel on January 30, 1921, the plaintiff in his second cause of action alleges a different libel on January 31, 1921, and in his third cause of action a still different libel in a later edition of defendant's newspaper on January thirtyfirst. Each separate libel is charged to have damaged the plaintiff. But in pleading his second cause of action the

Second Department, June, 1921.

[Vol. 197 plaintiff repeats and incorporates therein the libel set out in the first cause of action and alleges that defendant "notwithstanding the injury done to the plaintiff by the false and malicious publication set forth in the first cause of action," published a libelous article on January thirty-first. And so in the third cause of action, the plaintiff repeats and incorporates therein the two separate libels already pleaded in the first and second causes of action, with a similar statement that notwithstanding the injury done to him by the previous wrongdoing, defendant published a third separate and distinct libel in a later edition of its newspaper on January 31, 1921.

The appellant complains that under this method of pleading it is exposed to the danger of a double recovery for the same wrong. The plaintiff insists that the matter objected to is inserted in the second and third causes of action to show the animus of the defendant and to enable the plaintiff to show actual malice and thus enhance his damages.

I think the defendant's objection to this form of pleading should be sustained. The repetition of a libel may be evidence of malice, but it is to be considered, if at all, in connection with the particular libel charged, and repeated. The plaintiff cannot in his second and third independent causes of action introduce the previous wrong which is the subject of another action. As part of each cause of action the plaintiff alleges that the publication was false and untrue and malicious. Each separate libel constitutes a separate cause of action. Mr. Justice MILLER, writing for this court in the First Department, said in Collier v. Postum Cereal Co., Ltd. (150 App. Div. 169, 177): "I think the fair rule, and the one to be adduced from the cases, is that evidence of publications which might be the subject of other actions should not be received for the sole purpose of enhancing damages. In cases in which the law implies malice the plaintiff does not need to prove actual malice as he will recover his compensatory damages without such proof, and, if he be allowed to give evidence of a publication which might be the subject of another suit, for the sole purpose of recovering punitive damages, the practical result will be a double recovery. However, if it be necessary to prove actual malice, e. g., to rebut a claim of privilege, any evidence legitimately bearing on that question ought to be

App. Div. 277]

Second Department, June, 1921.

received even though it might be the subject of another action." While the plaintiff may offer proof of actual malice in each publication under the allegations in his complaint, he cannot reallege and retry his separate causes of action in the manner proposed. (Fleischmann v. Bennett, 87 N. Y. 231; Burkan v. Musical Courier Co., 141 App. Div. 202.)

The order should be reversed, with ten dollars costs and disbursements, and defendant's motion granted, with ten dollars costs.

BLACKMAR, P. J., MILLS, RICH and MANNING, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and defendant's motion granted, with ten dollars costs.

LOUIS GONZALES, Respondent, v. THE KENTUCKY DERBY COMPANY, Defendant, Impleaded with ISIDOR REICHENTHALER, Appellant.

Second Department, June 24, 1921.

Contracts contract not to sell or lease game or device to another purchase by defendant of game operated by same mechanism with knowledge of lease to plaintiff - findings that games were same - acts of defendant done maliciously defendant liable for inducing lessor to break contract with plaintiff damages and not profits recoverable - injunction too broad.

In an action to restrain the defendant from operating a game or device and to compel an accounting for the profits that he made by conducting the game it appeared that the plaintiff leased from a third person a game or device known as the "Kentucky Derby" which was operated by machinery; that the contract between the plaintiff and the lessor provided that the lessor would not sell or lease the same game to any other person to be operated on the Bowery at Coney Island, N. Y.; that thereafter the defendant with full knowledge of the contract between the plaintiff and the lessor of the game, purchased a device called Over the Top" which was operated by the same mechanism as the game leased by the plaintiff; that the only difference between the two games was that the background of the one leased by the plaintiff represented a race course over which miniature horses were driven by machinery while the game purchased by the defendant showed a battle field and instead of horses there were soldiers.

Second Department, June, 1921.

[Vol. 197

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Held, that a judgment in favor of the plaintiff can be supported only by a finding of fact that the game sold to the defendant is the Kentucky Derby game or device leased by the plaintiff.

Although no finding was made to that effect the fact did appear in a finding by the court, and the Appellate Division will add a finding of fact that the two games are the same.

The change in the background of the games and the substitution of figures of soldiers for the figures of horses does not change the identity of the game or device; in the appeal for public patronage they were the same game, and in the mechanism the same device.

The obligation to abstain from interference with a contract between others is a legal obligation, and neither active, as distinguished from constructive, fraud nor fraudulent misrepresentation is essential to the cause. The act of the defendant was properly found to be malicious, for the defendant knew about the contract rights of the plaintiff, and the change from horses to soldiers was done with the intent of evading the provisions of the contract between the plaintiff and his lessor.

The action is one in tort and it was rightly referred to a referee to compute damages instead of profits.

Equity has jurisdiction to proceed by injunction to prevent the continuing breach of the contract in the future and, incidentally, to award damages for the past, but the judgment should enjoin the defendant in the use of the particular game only and should not extend to like or similar games, nor to the use thereof other than in the place specified in plaintiff's lease.

PUTNAM, J., dissents, with opinion.

APPEAL by the defendant, Isidor Reichenthaler, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of January, 1921, upon the decision of the court rendered after a trial at the Kings Special Term.

The Kentucky Derby Company, Inc., manufactured a game or device known as the "Kentucky Derby." It consisted of a mechanism by which miniature horses were driven along a miniature race course by the operation of machinery controlled by the patrons of the game. The background or scenery of the game, called the "flash," represented a race course. On or about the 18th day of April, 1918, the Kentucky Derby Company leased one of the games to the plaintiff for a term of fifteen years by a written contract containing the following clause, viz.: "III. The said Company agrees that it will not itself operate, or sell or lease to any other person, firm or corporation any other Kentucky Derby game or device,

App. Div. 277]

Second Department, June, 1921.

to be operated on the thoroughfare known as the Bowery, Coney Island, N. Y., during the season of 1918, or as long thereafter as the said Gonzales wishes to have the exclusive right to operate the same game or device on said thoroughfare, as hereinafter provided." In April, 1919, while the plaintiff had the so-called "exclusive right," the Kentucky Derby Company sold to defendant Reichenthaler an amusement device called "Over the Top," and Reichenthaler installed it on the Bowery, Coney Island, near the " Kentucky Derby' game operated by plaintiff. The game "Over the Top" was operated in the same way and by the same machinery as the "Kentucky Derby" game, but differed from it in that the "flash" or background of "Over the Top" showed a battlefield instead of a race course, and that instead of horses there were soldiers. Reichenthaler was fully informed of the terms of the contract between the Kentucky Derby Company, Inc., and plaintiff, and obtained the game "Over the Top and installed it near the plaintiff for the purpose of securing patronage which would otherwise have fallen to plaintiff.

The plaintiff, claiming that the game "Over the Top " was the "Kentucky Derby" game, brought this action against Reichenthaler and the Kentucky Derby Company, praying that Reichenthaler be restrained from operating the game "Over the Top" and that he be directed to account to the plaintiff for the profits that he made by conducting the game. The action was discontinued against the Kentucky Derby Company, Inc., and upon trial judgment was granted to plaintiff enjoining Reichenthaler from the use of the game "Over the Top " and referring the case to a referee to compute the damages sustained by the plaintiff. From that judgment Reichenthaler appeals.

Jerome A. Strauss [Samuel Abrahams with him on the brief], for the appellant.

Charles E. McMahon [George B. Hayes with him on the brief], for the respondent.

BLACKMAR, P. J.:

The primary controverted question of fact is whether the game "Over the Top" is the same as the " Kentucky Derby "