Finkelstein v. Diamond

City of New York Municipal Court

Finkelstein v. Diamond

196 Misc. 162, 92 N.Y.S.2d 41, 1949 N.Y. Misc. LEXIS 2754

City of New York Municipal Court·Decided October 5, 1949·Published

Opinion

McCullen, J.

The complaint is insufficient. In setting forth the allegedly slanderous words spoken, the exact words used by the defendant should be alleged; it is not sufficient to summarize the language or to state plaintiff’s idea of its meaning or the substance of the words used (Crowell v. Schneider, 165 App. Div. 690; Deddrick v. Mallery, 143 App. Div. 819; Drohan v. O’Brien, 76 App. Div. 265; Locke v. Benton & Bowles, Inc., 253 App. Div. 369; Munzer v. Blaisdell, 268 App. Div. 9).

Because of this basic defect in the complaint, it becomes unnecessary to consider whether the complaint is deficient in any other respect. For an excellent discussion of the rules of pleading applicable to an action for slander, see Bender’s Forms of Pleading by Warren (Vol. 1, § 25, especially pp. 819-823).

The motion is granted to the extent of dismissing the complaint, for insufficiency under subdivision 5 of rule 106 of the Buies of Civil Practice, with leave to plaintiff to plead over within twenty days after service of this order with notice of entry, upon payment within the same time of $20 costs.

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McCullen, J.

The complaint is insufficient. In setting forth the allegedly slanderous words spoken, the exact words used by the defendant should be alleged; it is not sufficient to summarize the language or to state plaintiff’s idea of its meaning or the substance of the words used (Crowell v. Schneider, 165 App. Div. 690; Deddrick v. Mallery, 143 App. Div. 819; Drohan v. O’Brien, 76 App. Div. 265; Locke v. Benton & Bowles, Inc., 253 App. Div. 369; Munzer v. Blaisdell, 268 App. Div. 9).

Because of this basic defect in the complaint, it becomes unnecessary to consider whether the complaint is deficient in any other respect. For an excellent discussion of the rules of pleading applicable to an action for slander, see Bender’s Forms of Pleading by Warren (Vol. 1, § 25, especially pp. 819-823).

The motion is granted to the extent of dismissing the complaint, for insufficiency under subdivision 5 of rule 106 of the Buies of Civil Practice, with leave to plaintiff to plead over within twenty days after service of this order with notice of entry, upon payment within the same time of $20 costs.

Finkelstein v. Diamond, 196 Misc. 162, 92 N.Y.S.2d 41, 1949 N.Y. Misc. LEXIS 2754 (N.Y. Super. Ct. 1949).

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Opinion

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