Opinion
November 1, 1927.
Sebring King, for the plaintiff.
Arland, Pratt Pratt, for the defendant.
An allegation of defamatory matter in a complaint in a slander action "in words or substance" is insufficient in this jurisdiction. The actual words used must be pleaded. ( Crowell v. Schneider, 165 A.D. 690; 37 C.J. 26; 17 R.C.L. 390.)
It is not sufficient to set forth the import, tenor and effect of the words alone. ( Van Alstyne v. Lewis, 41 Misc. 355; Deddrick v. Mallery, 143 A.D. 819, 820.)
While this may be done by way of pleading, inducement, colloquium and innuendo, the precise words must first be pleaded. ( Battersby v. Collier, 24 A.D. 89.)
The words must be alleged, the conclusions from the words are for the jury. ( McNamara v. Goldan, 118 A.D. 221.)
It is possible that, if the alleged slander had been pleaded "in words and substance," the complaint could have been sustained by regarding the words "in substance" as surplusage. ( Gordon v. Hyman, 129 Misc. 351.) As it stands it is defective for the allegation is in the alternative and not in the conjunctive, and where a plaintiff alleges that he stands on either one of two theories, he does not state that he stands on both; thus each must be sufficient, or he may be relying upon the one that is defective. ( Johansson v. Kemp, 211 A.D. 276; Rodgers v. McLoughlin, 167 id. 931.)
In these respects the complaint fails to state a cause of action. Other alleged defects have not been considered. The complaint must be dismissed, except plaintiff may amend in ten days upon payment of costs.
So ordered.