202 A.D. 104 | N.Y. App. Div. | 1922
Upon the trial of this action the jury found that defendant, on the 25th day of February, 1916, at 104 Rose place in the city of Elmira, N. Y., said of and concerning the plaintiff: “ If I had my way I’d have you out of here in twenty-four hours. I won’t rent my house to whores like you and if I knew what you were I wouldn’t let you in. You have two or three men running after you. The man that knocked on the kitchen window was some one after you. You know who it was. The woman next door said it was Mr. Smith. I will have no tenants, if you stay I’ll make you move as soon as possible.” The judgment in favor of plaintiff was for $850 and costs. Defendant’s answer was a general denial, mitigation and justification. The evidence discloses that the defendant owns, at least, three apartments or houses for families at 104 Rose place in the city of Elmira, N. Y.; that plaintiff and her husband rented one of them and went into occupancy on February 15, 1916; that plaintiff’s family proper consisted of herself, her husband and two children; that boarding with them was one Smith referred to above, and he had been there more or less for five years previous to the trial. That the language quoted above, said of and concerning the plaintiff, is slander per se, there is no question. Defendant admits that he had a conversation with plaintiff on February 25, 1916; that Smith and one of plaintiff’s boys, nine years old, were present; that he did not use the language imputed to him, but did indicate that he would like to have her move because of the trouble
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.
Now respectively. Gen. Constr. Law, § 37a, as added by Laws of 1920, chap. 917, and Civ. Prac. Act, § 339.— [Rep.