122 Misc. 139 | N.Y. Sup. Ct. | 1923
This is an action for slander. The defendant has moved to dismiss the complaint upon the around that it fails to state a cause of action. It is urged that the alleged spoken words are not slanderous per se, and that, as special damages are not alleged, the complaint is defective.
The complaint alleges in substance that the plaintiff for a number of years last past has been a resident of New York city; that on and prior to March 3, 1923, he had a large circle of friends and acquaintances here and elsewhere in various specific cities and in other parts of the world, and that he was of good character and reputation and enjoyed the respect and esteem of his friends and acquaintances; that he is by profession a teacher of singing and for many years last past he has continuously exercised his profession not only in the borough of Manhattan, New York city, but in Paris, and Milan, Italy; that he has trained and developed the voices of numerous pupils, some of whom have become world famous as singers, and that he numbers among his pupils such renowned and famous singers as Amelita Galli-Curci, Rose
In actions such as the plaintiff has brought, the underlying principle that seems to control is that the words spoken must not only relate to the calling, business or profession of the person who claims to have been damaged, but that they must also tend to charge such person with the presence of some quality which would be detrimental, or the absence of some quality which is essential, to the successful carrying on of the particular profession or occupation. Bower Defamation, 28, 29, n. j.; Townshend Sland. & Lib. (4th ed.) 237; Newell Sland. (3d ed.) 75; Odgers Lib. & Sland. (5th ed.) 32. Nor is it enough that the words tend to injure one in his office or calling, but they must relate to his official or business character, and impute misconduct to him in that character rather than in his individual character (Townshend Sland. & Lib., supra; Van Tassel v. Capron, 1 Den. 250; Kinney v. Nash, 3 N. Y. 177; Keene v. Tribune Association, 76 Hun, 488.
Giving the alleged slanderous matter a construction most favorable to the pleader, I am of opinion that the words used do not impute misconduct to the plaintiff in his professional character. The most that can be said of them is that they tend to detract from the plaintiff’s experience as a teacher of singing and to charge that he has been advertising in respect thereto in a manner calculated to mislead.
But assuming that the pleading attacked is susceptible of this charge, it tends to impute to the plaintiff misconduct as a man rather than as a teacher of singing. It in no way reflects upon his ability as a teacher. It does not charge that he possesses qualities detrimental to his calling, or that he lacks qualities essential to it. It charges no lack of skill, knowledge of music or incompetency to teach or other qualities having to do with his profession.
It is urged, however, that the charge that the plaintiff has been guilty of false advertising imputes to him the commission of a crime. Penal Law, § 421. But the complaint does not charge that the plaintiff advertised within this state. However, assuming the charge to be that he had so advertised, the plaintiff, as I view it, would be in no stronger position. His action is not based upon an alleged charge of commission of crime, but solely upon a charge affecting his professional reputation. In Kinney v. Nash, supra,
It follows that the motion to dismiss the complaint must be granted unless the plaintiff has alleged special damages. I am of opinion that he has not. The general allegation that he has lost pupils and has been prevented from procuring others is insufficient. Smid v. Bernard, 63 N. Y. Supp. 278, and authorities cited.
Motion granted, but with leave to the plaintiff to plead anew within twenty days upon payment of ten dollars costs.
Ordered accordingly.