Durante v. Contanti

130 Misc. 632, 224 N.Y.S. 520, 1927 N.Y. Misc. LEXIS 1148

• Court: New York Supreme Court
• Decided: November 1, 1927
• Status: Published

Opinion

Thompson, J.

An allegation of defamatory matter in a complaint in a slander action “ in words or substance ” is insufficient in this jurisdiction. The actual words used must be pleaded. (Crowell v. Schneider, 165 App. Div. 690; 37 C. J. 26; 17 R. C. L. 390.)

It is not sufficient to set forth the import, tenor and effect of the words alone. (Van Alstyne v. Lewis, 41 Misc. 355; Deddrick v. Mallery, 143 App. Div. 819, 820.)

While this may be done by way of pleading, inducement, colloquium and innuendo, the precise words must first be pleaded. (Battersby v. Collier, 24 App. Div. 89.)

The words must be alleged, the conclusions from the words are for the jury. (McNamara v. Goldan, 118 App. Div. 221.)

It is possible that, if the alleged slander had been pleaded “in words and substance,” the complaint could have been sustained by regarding the words “ in substance ” as surplusage. (Gordon v. Hyman, 129 Misc. 351.) As it stands it is defective for the allegation is in the alternative and not in the conjunctive, and where a plaintiff alleges that he stands on either one of two theories, he does not state that he stands on both; thus each must be sufficient, or he may be relying upon the one that is defective. (Johansson v. Kemp, 211 App. Div. 276; Rodgers v. McLoughlin, 167 id. 931.)

In these respects the complaint fails to state a cause of action. Other alleged defects have not been considered. The complaint must be dismissed, except plaintiff may . amend in ten days upon payment of costs.

So ordered.