Weiner v. Vogel

18 A.D.2d 748, 235 N.Y.S.2d 428, 1962 N.Y. App. Div. LEXIS 6194

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1962
• Status: Published

Opinion

The defendant appeals from an order which denied his motion to dismiss the amended complaint of the plaintiff pursuant to ¡rule 106 of the Rules of Civil Practice on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The action is in slander* Plaintiff alleges that on the 20th of October, 1961 the defendant “in eonnieetion with the plumbing work done and the plumbing materials furnished to the defendant and others and in the presence of several persons maliciously spoke of and concerning the plaintiff, and Ms business and trade as a plumbing contractor the following words ‘you are a crook and thief.’” It is further alleged that at the same time and place and before the same persons, the defendant “in connection with the plaintiff’s plumbing business and trade aforesaid, the defendant maliciously spoke of and concerning the plaintiff and plaintiff’s plumbing business and trade the following false and defamatory words, ‘ you are a liar.’ ” This court in Bragunier v. Wendell (252 App. Div. 817) in reversing a dismissal of the complaint at the close of the evidence stated: “It is slanderous per se to call another a thief.” As to the allegations in the complaint with reference to the plaintiff’s business, the words are actionable without proof of special damage as tending to injure plaintiff in his business or trade. (Nunan v. Bullman, 256 App. Div. 741; Rager v. McCloskey, 305 N. Y. 75, 79.) The complaint, on its face, states a cause of action. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.