Weiss v. Nippe
| Citation | 170 N.Y.S.2d 642,5 A.D.2d 789 |
| Parties | Frederick Charles WEISS, Appellant, v. Kurt V. H. NIPPE, Respondent. |
| Decision Date | 20 January 1958 |
| Court | New York Supreme Court Appellate Division |
Louis Engelberg, New York City, for appellant.
Thomas P. Dougherty, New York City, for respondent.
Before NOLAN, P. J., and WENZEL, MURPHY, HALLINAN and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for slander the appeals are from orders denying appellant's motions (1) to strike out for insufficiency two affirmative defenses, and (2) to strike out certain items from respondent's demand for a bill of particulars.
Order denying motion to strike out defenses modified by adding thereto a provision that the amended complaint be dismissed pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice, with leave to serve a further amended complaint. As so modified, order affirmed, with $10 costs and disbursements to respondent. The further amended complaint shall be served, if appellant be so advised, within 10 days after the entry of the order hereon.
The amended complaint, which does not plead special damages, states no cause of action since the alleged defamatory words are not slanderous per se (Gurtler v. Union Parts Mfg. Co., 285 App.Div. 643, 140 N.Y.S.2d 254, affirmed 1 N.Y.2d 5, 150 N.Y.S.2d 4; May v. Peekskill Military Academy, 1 A.D.2d 960, 150 N.Y.S.2d 262).
Appeal from order denying motion to modify the demand for a bill of particulars dismissed, without costs, as academic.
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...slanderous per se, no such presumption exists, and to make the words actionable the complaint must allege special damage. Weiss v. Nippe, 5 A.D.2d 789, 170 N.Y.S.2d 642. The first question, therefore, is: Are the words uttered by the defendants in this case slanderous per se? The answer dep......
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