Anson Cassavoy, Respondent, v. William L. Pattison, Appellant

Anson Cassavoy, Respondent, v. William L. Pattison, Appellant. Slander — charge of dishonesty—it is not actionable per se unless spoken in reference to the person’s occupation or business—nor is a cha/rge that a man lived with an adopted daughter and left his wife alone, or that an acquaintance would be sorry that she ever met him. An oral charge of dishonesty is not slanderous per se and will not support an action for slander, unless it relates to the plaintiff in a special character or occasions special damage. Consequently, where the complaint in an action of slander based on such an accusation contains ho allegation that the words in question were spoken of the plaintiff in reference to any occupation or business, or that the plaintiff had any occupation or was engaged in any business, the complaint is demurrable. Oral statements that a man was accustomed to live with his adopted daughter for periods of a week at a time, leaving his wife at home alone, and that a ■ woman acquaintance would be sorry that she ever met him, are not actionable per se, and a complaint in an action of slander based upon such statements is demurrable where it contains no averment that they were uttered in reference to the plaintiff's calling or that they affected him in his business character. Appeal by the defendant, William L. Pattison, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of April, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the fifth and sixth causes of action set forth in the complaint. The causes of action attacked by the demurrer are as follows: “ V. * * * That on or about the 18th day of November,. 1901, and on many other occasions during the year 1901, at the Village of Peekskill in said county, the defendant, in the presence and hearing of one Hanford Smith, did wickedly and Maliciously speak of and concerning this plaintiff, the false and defamatory words following, that is to say: ‘ Be careful how you deal with that man Cassavoy, he is dishonest and he will do you if he can-,’ thereby charging and intending to charge this plaintiff with being dishonest in business transactions and with having the intent of defrauding the persons with whom plaintiff should do business. * * * That the said words were wholly false and untrue. * . * . * That by means of the premises aforesaid the plaintiff has sustained great damage, and by means thereof divers other persons who before the time of the committing of the said grievances had been used and accustomed to deal with the plaintiff in the way of his aforesaid business to the great profit and advantage of said plaintiff, have from thence hitherto wholly neglected and refused, and do still neglect and refuse, to continue such customer or to deal with the plaintiff, who has, by means of the premises been greatly injured in his reputation and credit as a business man and otherwise, and been otherwise greatly injured and damnified to his damage in the sum of One Thousand Dollars. “VL * * * That at divers times between the first day of January^ 1901, and the first day of January, 1902, at Peekskill, N. Y., and at the home of one Mrs. M. H. Michaels, No. 440 West 22nd street, in the' City of New York, the defendant, in the presence and hearing of the said Mrs. M. H. Michaels and of divers other persons did wickedly and maliciously speak of and concerning this plaintiff the following false and defamatory words following, to wit, that is to say: ' That he ’ (meaning this plaintiff) ‘ had an adopted daughter now the wife of one Edward Palmer, and that he ’ (meaning the plaintiff) ‘ was accustomed to go off and live with the said adopted daughter for periods of a week at a time, leaving his wife at home alone;’ and that upon the said occasion the said defendant did further speak of and concerning this plaintiff in the following false and defamatory manner, thus: ‘ That she ’ (meaning the said Mrs. Michaels) ' would be sorry that she had ever met this plaintiff in the south; ’ thereby charging and intending to charge, and being understood by the persons hearing the said words as charging this plaintiff with being an unfit person for her to associate with or to continue .upon her list of acquaintances. * * * That said words were wholly false and untrue. * * * That by reason of the premises aforesaid, the plaintiff has been greatly injured in his good name, fame and credit in the sum of • One Thousand Dollars.” Franklin Couch, for the appellant. Nathan P. Bushnell [Robert McCord with him on the brief], for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: This is an action for slander. The oral accusation of dishonesty set out in the fifth cause of action is not slanderous per se, and no action will lie for the utterance of such a charge by word of mouth unless it relates to the plaintiff in a special character, or occasions special damage. (See definition of slanderous words, per .Andrews, J., in Moore v. Francis, 121 N. Y. 199, 203.) There is no allegation that the words in question were spoken of the plaintiff in reference to any occupation or business, nor is there any averment that he had any occupation or was engaged in any business. These omissions are fatal to the statement of the cause of action. “ It is not enough that the words may tend to in jure him in his office or calling, unless they are spoken of him in his official or business character;” and this must be supported in the complaint. (Van Tassel v. Capron, 1 Den. 250, 252.) “ Any charge of dishonesty, against an individual in connection'with his business, whereby his character in such" business may be injuriously affected) is actionable. If spoken of him individually, and not in connection with his office or business, these words would not be actionable.” (Fowles v. Bowen, 30 N. Y. 20, 24.) So, also, it is necessary that the complaint, where the cause of action is of this character, shall show that the plaintiff at the time of the alleged slander was engaged in the office or business which he claims was injuriously affected by the utterance of the defamatory words. “ Where an action is brought for words (not actionable in themselves), spoken of a person in a particular calling, or profession or employment, it must appear that he followed such profession or employment when the words were spoken.” (Forward v. Adams, 7 Wend. 204, 208.) As to the sixth cause of action, it seems to me clear that the defamatory Words therein alleged to have been spoken by the defendant concerning, the plaintiff cannot in- any view be regarded as actionable fer se, and there is no averment that they were uttered in reference to the plaintiff’s calling or that they affected him in his business character. I think the demurrer should have been sustained as to both causes of action. All concurred. Interlocutory judgment reversed and demurrer sustained, with costs.