Ronnie v. Ryder — 28 N.Y. St. Rep. 141

Majority

p. 141

Jessie D. Ronnie, Resp’t, v. James Ryder and Catharine Ryder, App’lts.

(City Court of Brooklyn, General Term,

Filed December 23, 1889.)

Headnote

1. Slander—Pleading.

The complaint in an action for slander alleged that at the time of committing the grievances mentioned the defendants were husband and wife. It then alleged three separate slanders in different paragraphs.. Held, that the allegation that defendants were husband and wife was broad enough to cover all the charges; and if not the court had power to amend it in that respect.

2. Same—Words imputing unchastity.

The complaint charged that defendant Catharine said that she was glad that plaintiff was out of the premises; that “she is a dangerous woman and inclined for men." Held, that the court properly refused to take this cause of action from the jury on the ground that the words were not slanderous; that if there was a doubt as to whether they imputed unchastity it was a question for the jury.

Appeal from, judgment in favor of plaintiff, entered on the verdict of a jury.

Wm. J. Courtney, for app’lt; H, C. MacKrell, for resp’t.

Plaintiff brought this action to recover damages for slanders alleged to have been uttered on three different occasions against her by the defendant, Catherine Ryder, and the same were pleaded as three separate and distinct causes of action. The defense was a general denial. Plaintiff obtained a verdict of ($500) five hundred dollars.

Rarely has an appeal come before us in which there was so little merit. There are but two exceptions in the whole case.

Plaintiff alleged in her complaint, paragraph III, “ that defendants are, and at the time of committing the grievances hereinafter mentioned were husband and wife.” The complaint then proceeds to set forth the three alleged slanders as separate causes of action, constituting paragraphs IV, V and VI of the complaint. After plaintiff’s counsel had opened, defendant’s counsel moved to dismiss the complaint as to the second and third causes of action, on the ground that the complaint fails to charge that defendants were husband and wife at the time of the second and third causes of action.

The court denied the motion and ordered that the complaint be considered so as to charge in the second and third causes of action that defendants were husband and wife at the time of the alleged uttering of the words therein charged. To this ruling defendant’s counsel excepted. We think that the allegation of paragraph III of the complaint, above quoted, was broad enough to cover all the charges; but even if this were not so, the court, under § 723 of the Code of Civil Procedure, had full power to make the amendment, and the defendants were not surprised or prejudiced thereby.

p. 142

The third cause of action was that the defendant, Catherine Byder, was alleged to have said: “ I am glad Mrs. Bonnie (plaintiff), is out of my premises; she is a dangerous woman and inclined formen.” After plaintiff had rested,defendant's counsel moved that the court took from the jury this cause of action, on the ground that the words there imputed are not slanderous. The motion was denied and defendants excepted. We think that the court was clearly right in denying defendant’s motion. If there was any doubt as to whether the words proven imputed unchastity, then it was a question for the jury to determine in what sense the words were uttered and understood. Hayes v. Ball, 72 N. Y., 418 . This, however, the defendant’s counsel did not ask for; he sought to strike out the whole cause of action, and we do not think that the court would have been justified in so doing.

For the above reasons, we are of the opinion that the judgment and order denying motion for a new trial should be affirmed.

Judgment and order denying motion for a new trial affirmed, with costs.

Yan Wyok, J., concurs.