Nealon v. Frisbie

31 N.Y.S. 856 | The Superior Court of the City of New York and Buffalo | 1895

McADAM, J.

The words charged, though opprobrious, do not necessarily impute want of chastity, and are not necessarily actionable per se. Phillips v. Baldwin, 8 Wkly. Dig. 194; Schurick v. Kollman, 50 Ind. 330; K. v. H., 20 Wis. 239. And see Anon., 60 N. Y. 262; McMahon v. Hallock (Sup.) 1 N. Y. Supp. 312. Where words are not actionable per se, and do not on their face convey a slanderous imputation, there must be a preparatory statement of some extrinsic matter, a colloquium connecting it with the words spoken, and an innuendo showing the injurious sense in which they were uttered. 5 Wait, Act. & Def. 744. It is the office of an innuendo to define the defamatory meaning which the plaintiff sets on the words, to show how they came to have that defamatory meaning, and also to showr how they relate to the plaintiff, whenever that is not clear on the face of them. Odger, Sland. & L. 100,101. If the defendant intended by the use of the words in question to impute want of chastity in the plaintiff, and the persons who heard the language understood it in that sense, the fact should have been alleged, so as to exempt the complaint from uncertainty on demurrer. Vide supra; Moak, Van Santv. Pl. 428; Rundell v. Butler, 7 Barb. 260; Kennedy v. Gifford, 19 Wend. 296; Wallace v. Bennett, 1 Abb. N. C. 478. If the sense in which the words were used was disputed or in doubt, the intention conveyed and intended to be conveyed would have gone to the jury for determination. Hayes v. Ball, 72 N. Y. 418; Clapp v. Devlin, 35 N. Y. Super. Ct. 170; Schoonoven v. Beach, 23 Wkly. Dig. 348; Upton v. Upton, 51 Hun, 184, 4 N. Y. Supp. 936; Vaus v. Middle-brook, 3 N. Y. St. Rep. 277; and kindred cases. The difficulty with the pleading here is that, standing alone, unaided by innuendo making the intention certain,' the words charged must receive their ordinary import and meaning, and, so considered, they are not actionable per se, and there is nothing to send to a jury for determination. For these reasons it was error to overrule the demurrer. It follows that the interlocutory judgment must be reversed, and the demurrer sustained, with liberty, however, to the plaintiff to amend her complaint, on payment, within 20 days, of the costs of the demurrer and of this appeal. .