Opinion
September 30, 1960
Saxe, Bacon O'Shea ( Joel S. Stern of counsel), for Stork Restaurant, Inc., defendant.
Anthony S.E. Bono for plaintiff.
Defendant Stork Restaurant, Inc., moves for dismissal of the complaint for legal insufficiency. Defendant's employee is charged with slander per se in that he said of the plaintiff "This is the man who walked out of here about two months ago without paying his $11.00 bill"; and "You were sitting right at that end of the bar with two women"; and "your wife was not one of them". Plaintiff insists that he has thus been charged with punishable crime which alone in this context would sustain a complaint in slander per se. The words do not charge plaintiff with punishable crime ( Moore v. Francis, 121 N.Y. 199; Gillespie v. Byrne, 151 App. Div. 703; Stevens v. Whelan, 234 App. Div. 118; Reese v. Julia Sport Wear, 260 App. Div. 263; Steward v. World-Wide Autos. Corp., 20 Misc.2d 188). Plaintiff relies upon the alleged fact that he was and is a professional serviceman and subject to the Uniform Code of Military Justice. This would appear to constitute an extrinsic fact to support a charge of slander. In any event, plaintiff is not thereby or otherwise charged with or subjected to punishment for crime, nor is it asserted that he was in fact disciplined. Since no special damage is alleged, the complaint is defective. The motion is granted dismissing the complaint, with leave to plaintiff to serve an amended complaint within 20 days from service of a copy of this order with notice of entry thereof.