Cook v. Rief — 52 N.Y. Super. Ct. 302

Majority

p. 302

MARIA C. COOK, Appellant, v. PAUL RIEF, Respondent.

Headnote

Libel and slander—Pleading—Application of words to defendant.

The words “ Those people up-stairs keep a whore-house,” are actionable per se.

Where the complaint alleges that the above words were spoken “ concerning ” plaintiff, such allegation is sufficient under the Code, to connect the plaintiff with the words, “ the people up-stairs,” and will admit proof that plaintiff was one of the people referred to.

Fleischmann v. Bennett (87 J7. 7. 231), distinguished.

Before Sedgwick, Oh. J., and Truax, J.

Decided June 19, 1885.

Appeal from an order dismissing the complaint, and from the judgment entered against the plaintiff, and from the order denying the motion for a new trial.

The complaiqi; alleges “ that on the 4th day of October, 1884, at or near the premises No. 77*Grand street, in the city of New York, the defendant, in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff, the following false and defamatory words, viz : ‘Those people up-stairs keep a whore-house,

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and I can prove it,’ meaning thereby this plaintiff, whereby plaintiff was injured in her reputation to the damage of $5,000.”

The answer was a general denial.

The trial judge dismissed the complaint on the ground that it did not set forth facts sufficient to constitute a cause of action.

Henry C. Andrews, for appellant.

I. The complaint is sufficient. The material allegations where the words are defamatory on their face, and in the English language, are : that defendant with malice (Viele v. Gray, 10 Abb. Pr. 1 ), spoke in the hearing or presence of any persons (Wood v. Gilchrist, 1 C. R. 117), concerning the plaintiff {Code Civ. Pro. § 535), the false, slanderous matter.

II. The words are actionable, per se, because they impute to plaintiff an indictable offense, and involving moral turpitude (Penal Code, § 322 ; Martin v. Stillwell, 13 Johns. 275 ; Wright v. Paige, 36 Barb. 438 ; 3 Keyes, 581; Anon., Cro. Eliz. 643; Brayne v. Cooper, 5 M. & W. 249 ; Huckle v. Reynolds, 1 C. B. N. S. 114). It was therefore unnecessary to plead an innuendo or an averment that the words uttered were intended to impute the offense (More v. Bennett, 48 N. Y. 472 ; Carroll v. White, 33 Barb. 615 ; Croswell v. Weed, 25 Wend. 621 ). It is sufficient to say they were uttered concerning the plaintiff (Wesley v. Bennett, 5 Abb. Pr. 498 ; Malone v. Stilwell, 15 Ib. 426 ; Code Civ. Pro. § 535).

J. H. Whitelegge, for respondent.

If the words charged to have been spoken, were in fact uttered by defendant, there is po fact therein disclosed whereby the court can determine that the language was applied to, or had the remotest reference to the plaintiff. The complaint alleges no facts showing either that plaintiff was “those people,” or that she was “up-st-airs,” at any place at or near Ho. 11 Grand street, or elsewhere in that neighborhood, or that she was known there. The allegation that the words were spoken of, and “concerning the

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plaintiff,” and the words :—“ Meaning thereby this plaintiff,” are insufficient to constitute a cause of action when connected with the alleged slanderous words.

The language charged to defendant relates to a plurality of people, having no relation to or with the plaintiff, so far as the complaint shows. In Fleishman v. Bennett) in which the main question involved was, whether the libelous language set up applied to the plaintiff, the court of appeals ( 87 N. Y. 231 ), say : “ An innuendo in a complaint . . . does not enlarge the matter constituting the alleged libel, but only explains its application ; and when not justified by the alleged libelous statement to which it refers, so that rejecting it, the words are not libelous, a demurrer will He.”

Section 535 of the Code of Civil Procedure says that it is not necessary, in an action for Hbel or slander, to state in the complaint any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter ; but the plaintiff may state, generaHy, that it was published or spoken concerning him.

The words here are actionable per se. The only ex-, trinsic fact necessary for the plaintiff to show in order to maintain her action, is the fact that she was one of those people up-stairs. She has aUeged, in the words of the Code, that they were spoken " ‘ concerning ” her, and by demurring to the complaint, the defendant has admitted the truth of this aHegation. On the trial the plaintiff could have proved under this allegation, that she was one of those people up-stairs (Wesley v. Bennett, 6 Duer, 688 ; 5 Abb. 498 ; Malone v. Stilwell, 15 Ib. 421 ; Parker v. Raymond, 3 Abb. N. S. 343).

This case is to be distinguished from the case of Fleischmann v. Bennett ( 87 N. Y. 231 ). In that case the libelous article assailed the firm of Gaff, Fleischmann & Co., but the plaintiff alleged, and on the demurrer it was taken as true, that he was not, and never had been a

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member of that firm, and, therefore, the court held that the words used had no application to the plaintiff. It is as though the plaintiff in this case, had alleged that she was not one of “those ¡Deople up-stairs.”

The judgment and order appealed from are reversed, and a new trial is ordered, with costs to the appellant to abide the event.

Sedgwick, Oh. J., concurred.

Cases cited

Martin v. Stillwell 13 Johns. 275 N.Y. Sup. Ct. p. 303
Wright v. Paige 36 Barb. 438 N.Y. Sup. Ct. 1862-05-06 p. 303
More v. Bennett 48 N. Y. 472 N.Y. Comm'n App. p. 303
Carroll v. White 33 Barb. 615 N.Y. Sup. Ct. 1861-05-14 p. 303
Wesley v. Bennett 5 Abb. Pr. 498 N.Y. Super. Ct. p. 303
Fleischmann v. Bennett 87 N. Y. 231 N.Y. 1881-12-15 p. 304