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Keywords

lawsuittortplaintiffdefendantdamagesstatutemotionstatute of limitationsmotion to dismiss
tortplaintiffdefendantdamagesstatutestatute of limitations

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Hart v. E.P. Dutton & Co., 197 Misc. 274, 93 N.Y.S.2d 871

Facts

The plaintiff, Merwin K. Hart, brought a lawsuit against E. P. Dutton & Company, Inc. for libel, alleging that the book 'Under Cover', published on July 18, 1943, contained defamatory statements about him and others. Hart claimed that these statements caused significant humiliation and damage to his reputation, and he sought to recover $2,450,000, the profits from the book's sales. The defendant moved to dismiss the complaint, arguing that the claims were barred by the statute of limitations.

The complaint sets forth two separate causes of action based upon alleged libellous statements claimed by the plaintiff to have been contained in a book entitled ‘Under Cover’ which, according to the complaint was published by the defendant on or about July 18, 1943.

Issue

Whether the plaintiff's action for libel was barred by the one-year statute of limitations, and whether he could waive the tort and sue for money had and received under a six-year statute of limitations.

The question is squarely presented as to whether one who claims to have been damaged by the publication of a libel, under the circumstances alleged in this complaint, may waive the tort and maintain an action in assumpsit to recover the proceeds or profits derived from the publication of the libel.

Rule

An action for damages for libel must be brought within one year after the cause of action has accrued, as per Section 51 of the Civil Practice Act.

Section 51 of the Civil Practice Act provides that an action to recover damages for ‘libel or slander’ must be brought within one year after the cause of action has accrued.

Analysis

The court analyzed whether Hart's claim could be considered as an action for money had and received, which would fall under a six-year statute of limitations. However, the court concluded that the essence of the action was for libel, which was clearly barred by the one-year statute. The court emphasized that the plaintiff could not avoid the statute of limitations by recharacterizing the action.

The court should look for the reality and the essence of the action and not its mere name.

Conclusion

The court granted the defendant's motion to dismiss the complaint, concluding that the action was barred by the statute of limitations.

An order may be entered herein dismissing the complaint herein with ten dollars ($10.00) costs to the defendant.

Who won?

E. P. Dutton & Company, Inc. prevailed in the case because the court found that the plaintiff's libel claim was barred by the one-year statute of limitations.

The defendant urges that the complaint fails to allege facts sufficient to constitute any cause of action except one to recover damages for libel and that such an action is barred by the statute of limitations.

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