222 F. Supp. 1022 | S.D.N.Y. | 1963
The first counterclaim of each defendant, insofar as it alleges he was falsely accused by plaintiff of committing an assault and battery, is sufficient to withstand the motion to dismiss. The accusation is broad enough to charge a serious law violation (e. g., 18 U.S.C. § 113 (1958)) and as such may be deemed slanderous per se (Roberts v. Rothstein, 32 Misc.2d 643, 224 N.Y.S.2d 139 (1961)).
As to the charge that the defendants were drunk aboard ship, the authorities are clear that unless an allegedly defamatory statement is uttered of' and concerning one in his occupation or business, it is not slanderous per se and,, absent allegations of special damage, is not actionable (Gurtler v. Union Parts-Mfg. Co., 285 App.Div. 643, 140 N.Y.S.2d 254 (2d Dep’t 1955), aff’d, 1 N.Y.2d 5,. 132 N.E.2d 889, 150 N.Y.S.2d 4 (1956)).. While there are allegations that each defendant was serving as an officer aboard, the vessel, it is not clear that the words-“of being drunk” were uttered of him in his capacity as a ship’s officer. Hence,, this portion of the counterclaim is dismissed with leave, however, to serve an amended pleading within twenty (20) days hereof (see Torres v. Huner, 150 App.Div. 798, 135 N.Y. Supp. 332 (2d Dep’t 1912); Goodstein v. Chalfonte Hotel Corp., 198 Misc. 1068, 101 N.Y.S.2d 851 (1950); and Moran v. Singer, Sup., 75 N.Y.S.2d 874 (1947)).
As to the second counterclaim, which' charges plaintiff with libel in advancing the allegations in his complaint, the motion to dismiss is granted (Spieler v. Gottesman, 12 App.Div.2d 894, 210 N.Y. S.2d 102 (1st Dep’t 1961), aff’d, 11 N.Y. 2d 815, 182 N.E.2d 110, 227 N.Y.S.2d 437 (1962)).