Opinion
April, 1904.
Franklin Couch, for the appellant.
Nathan P. Bushnell [ Robert McCord with him on the brief], for the respondent.
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 injure 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 per 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.