Eislie v. Walther

24 N.Y. St. Rep. 122 | City of New York Municipal Court | 1889

Per Curiam.

The plaintiff and defendant were guests at a shooting festival of the Independent German Schutzen Corps, held on the 28th of June, 1887, at Lion brewery. Plaintiff and defendant, as well as others, competed for the first prize, to-wit, a gold medal of the value of $40. Each person shooting was furnished with a score-card, on which was recorded the score each person received after the shooting. The plaintiff claimed a score of 52 points, and demanded the prize. The defendant said, in the presence of the company, that the plaintiff did not score fifty-two points, that he was bin fifing, that he tried a bluff game before, and was a swindler,—he had swindled,—and they were glad they had caught him at last. The defendant had an interest in the subject-matter of thee communication, and the persons to whom the communication was' made had, with the plaintiff, a corresponding interest therein.

The defendant certainly had the right to dispute the claim that the plaintiff scored 52 points. If he had done nothing more, an action for slandei would not have been thought of. Adding that the plaintiff was “bluffing, ” and had played a “bluff” game before, adds no force to the charge; nor do the additional words that it was “a swindle, ” and that the plaintiff had swindled before, make them actionable, wnthout an allegation and proof of special damages. Chase v. Whitlock, 3 Hill, 139; Savile v. Jardine, 2 H. Bl. 531; Odiorne v. Bacon, 6 Cush. 185. The words used had reference to the score of fifty-two claimed by the plaintiff, and, in the sense employed, they were tantamount to saying that the plaintiff had claimed too much, or in other words, that the claim was an imposition. The words used were strong and exaggerated, rude, and vulgar, but not necessarily slanderous. Special damages were not pleaded, and were not proven, and the words, taken either collectively or separately, are not actionable. They did not charge the plaintiff with crime, nor with an attempt to commit crime. The plaintiff had a right to claim any score he honestly believed he was entitled to, and the defendant had the corresponding right to object to any claim he thought was exaggerated or unjust. We think he did this; nothing more. For the reasons stated, the motion to dismiss the complaint ought to have been granted, and the exceptions to the refusal are well taken. The judgment entered on the verdict in favor of the plaintiff must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.