Germ-Proof Filter Co. v. Pasteur-Chamberland Filter Co., 30 N.Y.S. 584

Germ-Proof Filter Co. v. Pasteur-Chamberland Filter Co.

30 N.Y.S. 584 | N.Y. Sup. Ct. | 1894

FOLLETT, J.

The complaint is fatally defective in two particulars :

1. The particular words spoken by defendant’s officers and agents, are not alleged, and a complaint which does not set out the words spoken is bad. Ward v. Clark, 2 Johns. 10; Fox v. Vanderbeck, 5 Cow. 518; Blessing v. Davis. 24 Wend. 100; Finnerty v. Barker, 7 N. Y. Leg. Obs. 316; Forsyth v. Edmiston, 2 Abb. Pr. 430; Cook v. Cox, 3 Maule & S. 110; Harris v. Warre, 4 C. P. Div. 128;. Townsh. Sland. & L. (4th Ed.) 329; Starkie, Sland. & L. (3d Eng. Ed.) 343; Id. (Wood’s Ed.) 425; Odgers, Sland. & L. 528; 13 Am. 6 Eng. Enc. Law, 456; Newell, Defam. 640 et seq. Several cases-cited also hold that this defect is not cured by a verdict.

2. The gravamen of the complaint is that defendant’s officers- and agents said that the plaintiff’s filters were an infringement on defendant’s patent, and that they (plaintiff’s filters) were not patented, and were falsely marked “Patented.” It is not alleged that plaintiff’s filter was patented. In actions for slander of title it is necessary for the plaintiff to allege and prove that he owned the property spoken of, and in an action to recover damages for-*586saying that .a particular article is not patented the plaintiff must allege and prove that it was. An allegation that defendant falsely said that plaintiff had no title, or no patent, is not equivalent to an allegation that plaintiff had title or held a patent. In case words are not actionable unless certain circumstances exist, these circumstances must be alleged in order to state a cause of action.

The count (eighth) for malicious prosecution need not be considered, for it is not alleged that the action complained of has been terminated in the plaintiff’s favor. Without considering the other questions raised, we think the complaint was rightly dismissed, on the ground that no cause of action is stated therein. The judgment should be affirmed, with costs. All concur.