Gillespie v. Byrne

151 A.D. 703, 136 N.Y.S. 207, 1912 N.Y. App. Div. LEXIS 7820

Opinions

Miller, J.:

The demurrer is for insufficiency. The important averment of the complaint is that “ the defendant, in the presence and hearing of a number of persons, including Louis W. Marks, the employer of both plaintiff and defendant, maliciously charged plaintiff with the theft of such goods as would, if the accusation were true, amount to grand larceny, and maliciously spoke concerning the. plaintiff the false and defamatory words following, to wit, ‘You took something in your stocking every day this week’ and ‘You ought to be ashamed of yourself, a woman of your age.’” The plaintiff claims that the words complained of were spoken-concerning the plaintiff in her trade or calling. But there is no averment to that effect. While it is averred that the defendant charged the plaintiff with theft, that averment and the one of the particular words complained of are in the conjunctive, and it is not claimed that the former was intended as an innuendo. The question presented, therefore, is whether the bare averment of the speaking of the words quoted by the pleader, without any innuendo or the statement of extrinsic facts to support it, is sufficient. That depends on whether the words themselves, standing alone, naturally import a criminal charge. We do not think they do. A woman might with, propriety carry things in her stocking, for which some people might say she ought to he ashamed.

The interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint on payment of costs in this court and in the court below.

Ingraham, P. J., Clarke and Dowling, JJ., concurred; Laughlin, J., dissented.