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Fitzgerald v. Geils

32 N.Y.S. 306 Court N.Y. Gen. Term Decision date 1895-02-11 English

Delivered by PRATT, J.

Contents

Majority

p. 306
(84 Hun, 295.)
FITZGERALD v. GEILS
(Supreme Court, General Term, Second Department.
February 11, 1895.)

Headnote

Libel and Slander—Pleading—Amendment.
A defect in a complaint for slander, in that it fails to allege that the words were spoken of and concerning plaintiff’s trade, and that he was therein specially injured, and alleging special damages, may be cured by amendment, and is therefore not a ground for dismissal.
Appeal from circuit court, Westchester county.
Action by Michael Fitzgerald against John Ceils for slander. From an order granting a motion to dismiss the complaint, and from the judgment entered on said order, plaintiff appeals. Reversed.
Argued before BROWN, P. J., and PRATT, J.
Chas. H. Noxon, for appellant.
Martin J. Keogh, for respondent.

Tips is an appeal from a judgment rendered upon an order made at circuit dismissing a complaint upon its face in an action of slander. The complaint is as follows:"

The plaintiff above named, complaining of the above-named defendant, respectfully shows to the court, and alleges: First. That, at all times mentioned in this complaint, both he and the defendant have been, and now are,
p. 307
residents of the county of Westchester and state of New York. Second. That between the 1st day of October, 1892, and the 1st day of May, 1893, at divers times in the village of New Rochelle, Westchester county, New York, and vicinity, the defendant, in the presence and hearing of a number of persons, maliciously spoke, concerning the plaintiff, the false and defamatory words following: “The plaintiff is a drunkard,” “and, by reason of plaintiff’s drunkenness, he is no good any more as a mechanic.” Third. That plaintiff’s only means of supporting himself and his family is as a carpenter and builder. Whereby the plaintiff was injured in his reputation, to his damage five thousand dollars. Wherefore plaintiff demands judgment against the defendant for five thousand dollars, with the costs of this action.

The only criticism that can be made upon it is that it does not allege that the words were spoken of and concerning the trade or business of the plaintiff, and that he was therein specially injured, and alleging special damages. But it is evident from the face of the complaint that the words were spoken of and concerning plaintiff’s trade, and, under the Code, the complaint set forth a good cause of action. It has been recently held in this district that a charge made maliciously in respect to the professional capacity of a person which, if true, would render him unworthy of employment, is actionable per se. This renders any allegation of special damage unnecessary. Cruikshank v. Cordon, 48 Hun, 308 , 1 N. Y. Supp. 443 . But, assuming the above case is not good law, we think the plaintiff should have been allowed to amend by inserting in his complaint an allegation of special injury and damage. Lynde v. Johnson, 39 Hun,. 12 ; Fowles v. Bowen, 30 N. Y. 20 . Judgment set aside, and motion denied, with costs.

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