126 Misc. 202 | N.Y. App. Term. | 1925
The complaint, in this libel action, was assailed for insufficiency under rule 106 of the Rules of Civil Practice. The learned justice below held (1) that no publication was shown, and (2) that the alleged defamatory matter was not libelous per se. The plaintiff alleges that the defendant wrote to a Mr. Herzberg, a person who is not directly identified in the complaint, a letter in which, after complaining of the conduct of the plaintiff in a business transaction between plaintiff and defendant, and characterizing that conduct as “ anything but fair and scrupulous,” defendant says: “ Such manner of acting is usually typical of the worst kind of dead-beat.” The letter commenced as follows: “ Replying to your letter of March 17th.” At a subsequent point in the letter defendant referred to plaintiff as “ your client.” We think, therefore, that there is enough in the complaint to make a prima facie showing that the letter was addressed to an attorney at law, acting on behalf of plaintiff in respect of the business transaction referred to, and that it was in reply to a letter sent by the attorney to defendant in relation to that business transaction. The plaintiff was sufficiently described in the complaint as a merchant or trader.
Order and judgment affirmed, with costs.
All concur; present, Gut, Bijur and Mullan, JJ.