The action is for malicious prosecution. The allegations of the complaint of the publication in a newspaper of the arrest of the plaintiff upon the charge of the defendant, and of the charge against him, and setting the articles out in full, are irrelevant. If the defendant caused the publications to be made, it may be sued for libel; but the matter is not pleaded as a cause of action; nor could the two causes of action be united (Code Civ. Pro. § 484). If the fact of publication be competent as evidence to show the extent of the publicity, and hence of the plaintiff’s damage (about which I. say nothing), that is no reason for pleading it. Evidence should never be pleaded, although some timid ones in our learned profession are of late made uneasy on that head by the learned reporter’s catch words to his learned head note to the learned opinion in Stokes v. Polley (164 N. Y. 266), viz., “Evidence — When Admissible Although Not Pleaded.” But a learned profession should not swerve for such inadvertences, wherever found.
The motion is granted with $10 costs.