Di Blasi v. Artale ( 1909 )

Jenks, J.:

The action is slander, and the material part of the complaint is: “That on or about the 3rd day of December, 1908, at number 152 Johnson avenue, in the Borough of' Brooklyn, County of Kings, City and State of New York, the defendants and each of them, in the presence and hearing of one Giovanni Buongirno and divers other persons, maliciously spoke concerning and to the plaintiff the following false and defamatory words in the Italian language: ‘ Tu sei ladro, co hai rubato Lire ottocento.’ That said words meant and were understood to mean by the persons then present and hearing the same: ‘You are,a thief, you have stolen from us eight hundred Lire.’ ” The demurrer is: “ The defendants above named, and each of them, demur to the complaint herein on the ground that causes of action have been improperly united, in that the plaintiff lias joined in one action, several and distinct causes of action against each defendant, alleged to have spoken the slanderous words mentioned in the complaint herein.”.- We think that the demurrer was not well made. The point of the demurrants is that an action for slander can be maintained against but one person. But since the judgment of the Court of Appeals in Green v. Davies (182 N. Y. 499) this is not the rule in this State. The learned counsel for the respondents would limit the force of that judgment as a precedent in this case, in that the court in Green's Case (supra) but “ indicates that, there is a possibility ” for holding several defendants for the slander, provided they procure the utterance, or the utterance was “ in pursuance of a common agreement,” whereas this complaint states that the slanderous words were spoken by each of them, and not by one person, either under procurement or under agreement. Cullen, Ch. J., in Green v. Davies (supra), while disavowing any Suggestion that repetition of a slander is part of the original slander, says for the court: “ But if the two slanders were uttered in pursuance of a common agreement between the parties that such slanders should be uttered, then each is jointly liable with the other for their utterance and separate causes of action for slander may be joined in the same complaint under section 484 of the Code.” It is true that in Green's Case (supra) there was specific allegation of conspiracy, but, as pointed out in that case (citing authorities), this was not essential. The fact that a slander is spoken by more than one conspirator does not negative the existence of the conspiracy to utter' that slander. In fine, I think that the plaintiff would be entitled under this complaint to prove that these slanders were uttered in pursuance of a common agreement, within the rule of Green's Case (supra), and hence that the judgment and the interlocutory judgment must be reversed, with costs, with leave to the defendants to plead over on payment of costs.

Hirsohberg, P. J., G-aynor, Rich and Miller, JJ., concurred.

Judgment and interlocutory judgment of the County Court of Kings county reversed, with costs, with, leave to the defendants to plead over on payment of costs.