Rowe v. Washburne

70 N.Y.S. 868 | N.Y. App. Div. | 1901

Laughlin, J.:

This is an action for slander. The complaint alleges that the plaintiff is engaged in business in the city of Hew York and elsewhere as a dealer in cotton, and also as an inventor and dealer in inventions and patented articles; that on or about the 21st day of January, 1901, at the borough of Manhattan in said city, “in the presence and hearing of divers persons,” defendant uttered the following false, scandalous and defamatory words of and concerning the plaintiff : ■“ He (meaning the plaintiff) is a schemer (meaning a cheat, knave and swindler and one with whom it was not fit or safe to have business dealings). He beat me out of the sum of $5,000.00 by selling me a patent mail box, of which he had no patent (meaning that plaintiff had cheated, defrauded and swindled defendant out of and stolen from him the sum of $5,000 by inducing him to purchase for that sum from plaintiff the right to make and deal in a certain kind and style of mail box by means of false and fraudulent representations wilfully and designedly made with the intent of depriving and defrauding defendant out of his. property, to wit, said sum of $5,000.00, and that same was patented, and that he, plaintiff, owned the patent thereon when he was not such owner). And he (meaning plaintiff) is trying to beat me out of more (meaning that plaintiff was at that time engaged in the endeavor to swindle and defraud out of and steal from him- a further or additional sum or amount of money).”

The answer contains a general denial of the utterance of the alleged slander. The plaintiff’s affidavit read in opposition to the motion shows that lie does not know more definitely than is stated in the complaint the place where or the persons to whom the alleged slanderous words were uttered, and that defendant must know where and to whom he spoke them. According to the complaint, the slander occurred all at one time and place. The defendant denies having slandered the plaintiff, and this leaves upon' the plaintiff the burden of establishing his case by competent evidence.

The defendant is entitled to a bill of particulars which will inform him more accurately of the place where plaintiff intends to prove the slanderous words were uttered, and also the name of at least one of the person's in. whose presence and hearing they were spoken. (Stiebeling v. Lockhaus, 21 Hun, 457; Tilton v. Beecher, 59 N. Y. 177; Woods v. Gledhill, 35 N. Y. St. Repr. 597; Dempewolf v. Hills, 53 N. Y. Super. Ct. 105; Turner v. Beavan, 10 N. Y. Supp. 128; Shaffer v. Holm, 28 Hun, 264; Murray v. Mabie, 55 id. 38; McCarron v. Sire, 14 Civ. Proc. Rep. 252.)

' Plaintiff contends that the words are actionable 'per se. The complaint does not sufficiently allege special damages to warrant proof thereof, and consequently the defendant is not entitled to a bill of particulars in that regard, nor is he entitled to a hill of particulars showing that plaintiff is a dealer in patents.

The moving affidavit is justly open to criticism and doubtless led to the denial of the motion; but in view of the indefiniteness of the complaint and the nature of the action, we think a bill of particulars should have been ordered.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion for a bill of particulars as to the place of the slander and as to the name of one of the persons in whose presence and hearing it is claimed the slanderous words were uttered, is granted, with ten dollars costs.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars Costs and disbursements, and motion granted to the extent stated in opinion, with ten dollars costs.