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Brandt v. Winchell

Supreme Court of New York, Appellate Division

February 16, 1954

JOSEPH L. BRANDT, Respondent,
v.
WALTER WINCHELL et al., Appellants.

Page 339

APPEAL by the defendants Winchell and Teeter from an order of the Supreme Court at Special Term (HAMMER, J.), entered March 25, 1953, in New York County, which denied a motion

Page 340

by said defendants for an order dismissing the complaint under rule 106 of the Rules of Civil Practice, or, in the alternative, requiring plaintiff to separately state and number said cause of action, pursuant to rule 90 of the Rules of Civil Practice, and to make the complaint more definite and certain, pursuant to rule 102 of the Rules of Civil Practice.

APPEAL by the defendant Bobst from an order of said court, entered March 25, 1953, in New York County, which denied a motion by said defendant for an order dismissing the second cause of action in the complaint under rule 106 of the Rules of Civil Practice, or, in the alternative, requiring plaintiff to separately state and number each cause of action against defendant, pursuant to rule 90 of the Rules of Civil Practice, and to make said cause of action more definite and certain, pursuant to rule 102 of the Rules of Civil Practice.

COUNSEL

Gilbert H. Weil for respondent.

Clifton Cooper of counsel (Ernest Cuneo, E. Raymond Shepard and George Ainsworth, Jr., with him on the brief; Baldwin, Todd, Herold, Rose & Cooper attorneys), for Elmer H. Bobst, appellant.

Ernest Cuneo for Walter Winchell and John H. Teeter, appellants.

CALLAHAN, J.

The complaint alleges two causes of action which are alike, except that the first is pleaded against the defendant Winchell alone and the second reiterates the same allegations in charging a conspiracy against all three defendants to injure the plaintiff.

The defendants have separately moved to dismiss the complaint for insufficiency, or relief in the alternative.

The first cause of action may be summarized as alleging that the defendant Winchell, who is a reporter, columnist and radio commentator, is also interested in soliciting funds for the Damon Runyon Memorial Fund for Cancer Research, Inc.; that in October, 1949, the plaintiff helped to organize Cancer Welfare Fund, Inc., which also collects funds for relief of cancer; that the defendant embarked on a wanton and malicious plan with intention to harm the plaintiff by destroying Cancer Welfare Fund and thus destroying the plaintiff's ability to participate in its work or any similar enterprise; that the defendant's purpose was to eliminate Welfare and the plaintiff as competitors; and that in carrying out said plan and scheme the defendant performed acts of the following nature: (a) Instigating baseless,

Page 341

but harassing investigations of the plaintiff and his business by law-enforcement agencies, (b) fomenting criminal proceedings against the plaintiff, (c) registering false complaints with governmental departments resulting in loss of the plaintiff's pistol permit and his private detective's license, and (d) falsely and maliciously accusing the plaintiff of fraud, embezzlement, cheating, dishonesty, incompetency, etc. It is further alleged that as a result of the aforementioned acts the plaintiff was deprived from 1950 to date of earnings of $200 a week; that his ability to earn a livelihood was destroyed and his reputation demolished; that he has been held up to public contempt and hatred and has been compelled to undergo the expense of defending a trial on criminal charges and appeal; that he has ...


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