Colgin v. United States Mercantile Reporting Co.

We think the order below was entirely unauthorized. The plaintiff, by his original complaint, alleged the publication of the statement referred to in the first cause of action, but alleged that it was made in connection with another statement which, in the amended complaint, constitutes a second cause of action. The motion was merely to separate the two publications as having been made at two separate times, instead of both at one time, as alleged in the original complaint. There was nothing in this amendment which stated a new and independent cause of action. It was simply separating in the amended complaint two causes of action that had been improperly joined. If the defendant published of and concerning the plaintiff the statement contained in the first cause of action, the plaintiff has the right to sue to recover the damages sustained by such publication, and the separating of the two causes of action, alleged in the original complaint as one cause of action, does not now prevent the defendant from pleading any defense to either of the causes of action that he may have. The question as to the right to serve the amended pleading is not before us. The amended ■complaint was received without objection, and no motion was made to set it aside as improperly served. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present— Barrett, Rumsey, Patterson and Ingraham,