not. These people advised your deponent that they purchased these homes relying upon this information and indeed many houses were mortgaged upon this assumption. That your deponent advised the Town Board that if this were the case then such people were being swindled and that [the Town Highway Ordinance should be revised to prevent such occurrences] in the future.” The complaint contains the following allegations: “ 5. That on or about August 12,1968, at about 8:00 p.m. thereof, the defendant maliciously spoke and published of and concerning the plaintiff in his said craft, trade and profession the following defamatory matter, viz: In response to questions concerning roads posed by certain homeowners who stated they had purchased their homes from the plaintiff, defendant stated, ‘You have been swindled.’ ::: i? ' . That said statement was made in a specific context referring to the plaintiff. 6. That the defendant made the statement referred to, and others, in the presence of a large crowd, including newspaper reporters, in a public meeting; both in and out of his capacity as Town Highway Superintendent. 7. That defendant published such defamatory matter with actual malice towards the plaintiff and with utter and reckless disregard for the effect of his statements and with wrongful and wilful intent to injure him in his reputation, business, credit and feelings, and to expose him to ridicule, fear, hate and contempt.” The complaint contains no allegation of special damage and if the complaint is to be sustained, it must be upon a finding that the words spoken are slanderous per se. Such a finding would require the words spoken to charge plaintiff with a punishable crime or tend to injure him in his trade, occupation or profession and that the words were spoken of plaintiff in his trade, occupation or profession.
(Gurtler v.
Union Parts Mfg. Co., 285 App. Div. 643 , affd.
1 N Y 2d 5 .) In a complaint for slander plaintiff may generally allege the application of the words to him, and it is not necessary that he be mentioned by name in the alleged defamatory statement.
(Harwood Pharmacol Co. v.
National Broadcasting Co., 9 N Y 2d 460 .) Whether plaintiff was the person referred to in the statement is a question for a jury to determine
(Bridgewood v.
Newspaper PM, 276 App. Div. 858 ) and, under the circumstances here, the complaint should be sustained unless it can be held, as a matter of law, that the words were • not spoken of plaintiff' in his trade, occupation or profession.
(Weiner v. Vogel, 18 A D 2d 748 .) The allegations in the complaint connect the words spoken to plaintiff’s business and show that the words were addressed to persons who had purchased homes from plaintiff and knew that he was the developer of the subdivision embracing the roads under discussion at the time. The words could have been understood by them to refer to plaintiff in his business and, since the statement is susceptible to a defamatory meaning, plaintiff is entitled to have the question submitted to a jury.
(Fischer v.
Post-Std. Co., 14 A D 2d 130 .) Since Special Term did not pass on defendant’s motion to implead the Town of North Greenbush as a third-party defendant and on defendant’s motion to serve an amended answer as academic, in view of our reversal and reinstatement of the complaint, it would be appropriate to decide these issues. The motion to implead the Town of North Greenbush as a third-party defendant should be denied, since no notice of claim under section
50-e of the General Municipal Law has ever been filed and there is no statutory provision for indemnification to a Highway Superintendent other than for his negligence committed in the operation of the Highway Department and the maintenance of the town highways. (Town Law, §§ 65, 65-a, 67.) However, defendant’s motion to serve an amended answer herein for the purpose of alleging affirmative defenses should be granted. Judgment reversed, on the law and the facts, without costs, and motion to dismiss the complaint denied; in addition, defend