Verbeck v. Duryea

73 N.Y.S. 346 | N.Y. Sup. Ct. | 1901

McAdam, J.

The complaint alleges that the plaintiff is in the business of decorating and supplying houses with interior furnishings, and has been so engaged for the past twenty-five years; that prior to January 1, 1900, he was employed by the defendant and one Ellis G. Potter, for whom he estimated on and secured contracts; that he had a number of personal customers, whose business he secured for his employers; that one of plaintiff’s personal customers, named Jennings, commissioned defendant to buy a gilt cabinet in Europe for said customer; that defendant sent Jennings a domestic cabinet instead of an imported one; that when Jennings called on defendant to account for supplying a domestic cabinet instead of an imported one, defendant said to Jennings: “Mr. Yerbeck (meaning the plaintiff) said to our bookkeeper that, as there was a domestic cabinet in the store at that time (meaning the time the cabinet was shipped to said Jennings), and the one Mr. Duryea had purchased for Mr. Jennings had not yet arrived, it made no difference to the firm (meaning the said firm of Duryea & Potter) who got the cabinet, and to send Mr. Jennings the domestic cabinet and send the imported cabinet to Mr. Bellamy (meaning a Mr. Bellamy, whom the defendant claims was a customer of his firm); further, that Mr. Yerbeck (meaning the plaintiff) would make everything all right with Mr. Jennings (meaning that plaintiff would use his influence with said Jennings to deceive him and to prevent any trouble), as he carried him around in his vest pocket.” Upon the above allegations two causes of action are contained in the complaint; but in the second cause of action the plaintiff’s statement as to his damages is a little fuller than that made in connection with the first cause of action. It is obvious that the pleader was in doubt as to whether the first alleged cause of action was slander per se, and that he endeavored to set up slander with special damage in the second cause of action. Upon either theory the complaint appears to be insufficient. The substance of the alleged slander is that- the defendant said that the plaintiff would make everything all right with Mr. Jennings and that he carried Jennings around in his vest pocket. The natural sense or meaning of these words is that the plaintiff had great influence with Jennings and would exert that influence to save trouble between the parties. The language is not defamatory. It would not, if true, disqualify the plaintiff or render him less fit properly to fulfill the duties incident to his employment. Townsh. Lib. & Sland. (4th ed.) 237. The plaintiff, however, by way of innuendo, claims that defendant meant that plaintiff would deceive Jennings, and that charging such deceit, in connection with the other averments of the complaint, constitutes slander per se. An innuendo cannot enlarge or extend the natural sense or meaning of alleged defamatory words. Words in themselves innocent cannot be rendered actionable by an innuendo. 13 Ency. Pl. & Pr. 51. “ If the words before the innuendo do. not sound in slander no words produced by the innuendo will make the action maintainable, for it is not the nature of an innuendo to beget an action.” Barham v. Nethersall, Yelv. 21. The plaintiff has also failed to allege a cause of action for slander with special damage. In. connection with the second alleged cause of action he avers: “ That by reason thereof plaintiff lost contracts and customers and has been deprived of business and profits which he could have otherwise made, and was injured in his reputation to his damage $10,000.” This allegation is too general to satisfy legal requirements. Langdon v. Shearer, 43 App. Div. 607; Smid v. Bernard, 31 Misc. Rep. 35; Hallock v. Miller, 2 Barb. 630; Shipman v. Burrows, 1 Hall, 442; Erwin v. Dezell, 64 Hun, 391; Zinserling v. Journal Co., 26 Misc. Rep. 593; Bosi v. New York Herald Co., 33 id. 622; affd., 58 App. Div. 619. The demurrer must be sustained, with costs.

Demurrer sustained, with costs.