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October 30, 1950

MacDougall et ux.

The opinion of the court was delivered by: GALSTON

The defendant, Albert Edward MacDougall, moves to dismiss the first, second, third, fourth and seventh causes of action on the grounds that they fail to state claims upon which relief can be granted against this defendant.

The defendants are husband and wife, and reside in the Eastern District of New York. The plaintiff is a citizen of Missouri. Jurisdiction is, therefore, based upon diversity of citizenship. The sufficiency of each of the alleged causes of action is thus governed by the law of the State of New York, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188.

 The plaintiff is an attorney and admitted to practice in the States of Illinois, Missouri and New York, and in the Supreme Court of the United States. Each of the eight causes of action is for slander, alleged to have been spoken in the City of New York.

 Though it will be necessary to take up separately each of the actions challenged by the defendant, it may be observed generally that the plaintiff had been an assistant secretary and director of the Queensboro Corporation and other real estate corporations of which MacDougall was president. These corporations constituted an integrated enterprise for the ownership of real estate, and for the construction, management and servicing of apartment houses and business and educational properties located in Jackson Heights, New York.

 In the first cause of action he alleges that some time between July 25, 1949 and October 27, 1949, MacDougall said of the plaintiff, in talking to his wife, Inez Brown MacDougall, 'Dyer has showed a lack of cooperation on Greenbrier, which the company must succeed with to make up losses'. The complaint says that the word 'company' refers to the Queensboro Corporation, of which Dyer was then a director and assistant secretary, and that 'Greenbrier' referred to an apartment building project devised by MacDougall. Dyer says these words were wholly false, and were known to MacDougall to have been false, and were uttered for the purpose of imputing that Dyer was not a loyal officer and director of the Queensboro Corporation; that he was insubordinate and contumacious. Dyer concludes that he was injured in his good name as an attorney and counsellor at law, and was thus held up to ridicule and contempt of his relatives, friends and the public, and to this damage in the sum of $ 10,000.

 There are various grounds on which this cause of action fails to state a claim on which the plaintiff is entitled to relief. In the first place, lack of publication is a ground for dismissal. A communication from husband to wife in the absence of a third person is not publication, and is not actionable as slander, whatever the motive may be, and though the statement may be false; Lawler v. Merritt, 182 Misc. 648, 48 N.Y.S.2d 843; affirmed without opinion, First Dept., 269 App.Div. 662, 53 N.Y.S.2d 465. Plaintiff's reference to the 1937 amendment of Sec. 57 of the Domestic Relations Law of New York, McK. Consol. Laws, c. 14, which gives a right of action by or against a married woman, and by husband or wife against the other for torts, does not wholly abrogate the fiction of the unity of husband and wife. This is specifically recognized in Lawler v. Merritt, supra.

 Another ground properly urged in support of the proposition that there is no cause of action stated is that no case of slander is made out. To say that the plaintiff 'showed lack of cooperation' is certainly not slanderous per se. The words do not impute crime; nor can it be inferred that the words disclose anything dishonorable or improper in the conduct of the plaintiff's vocation. The temptation in these slander and libel cases to review the authorities in respect to the general law on slander and libel is always more or less great. Perhaps, however, it will be sufficient to quote from the opinion of Judge Cardozo, in Ostrowe v. Lee, 256 N.Y. 36, at page 30, 175 N.E. 505 at page 506: 'The schism in the law of defamation between the older wrong of slander and the newer one of libel is not the product of mere accident. Veeder, The History of the Law of Defamation, vol. 3, Essays in Anglo-American Legal History, 459, 461, 467, 468, 471; Fisher, The History of the Law of Libel, 10 L.Q.R. 158; 1 Street, Foundations of Legal Liability, pp. 291, 292; 8 Holdsworth, History of English Law, p. 365. It has its genesis in evils which the years have not erased. Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one abides and 'perpetuates the scandal.' Harman v. Delany, Fitzgibbon, 253, 254; Veeder, supra, p. 472; Street, supra p. 294.'

 For this reason, because of the difference as thus indicated between slander and libel, many of the cases cited by the plaintiff are not in point. What may be libelous per se is not always slanderous per se, Hartmann v. Winchell, 296 N.Y. 296, 73 N.E.2d 30. Kober v. Lyle, 173 App.Div. 655, 160 N.Y.S. 99 is particularly pertinent, where it was held that the spoken words had no bearing upon the character of the plaintiff in his vocation. Other cases in point are Weidberg v. LaGuardia, 170 Misc. 374, 10 N.Y.S.2d 445; Thorner v. Samuels, 122 Misc. 139, 203 N.Y.S. 316, affirmed 209 App.Div. 863, 205 N.Y.S. 955.

 Nor does the first cause of action allege any special damage. Under the authorities, to be sustainable it should, O'Connell v. Press Publishing Co., 214 N.Y. 352, 108 N.E. 1102. Shakun v. Sadinoff, 272 App. Div. 721, 74 N.Y.S.2d 556, 557, sets forth the correct rule: 'Words which directly tend to injure or prejudice the reputation of the plaintiff in the way of any office held by him, or in the way of any lawful profession or trade carried on by him, are actionable without proof of special damage. In such cases, the plaintiff must allege in his statement of claim, and prove at the trial, that he held the office, or carried on the profession or trade, at the time when the words complained of were published. He must also allege and prove that the words were spoken in reference to his character or conduct in such office, profession or trade. There must be some reference, direct or indirect, in the words or in the circumstances attending their utterance, which connects the slander with such office or profession or trade. If the words merely impute to the plaintiff some misconduct unconnected with his office profession, or trade, they are not actionable without proof of special damage; it is not sufficient that they are calculated to injure him therein.'

 Applying the law of that case to the first cause of action, the statement made by MacDougall to his wife, per se or by reasonable innuendo, fails to show injury to the plaintiff as an attorney and counsellor at law. Since the words are not defamatory per se, the statement cannot be enlarged by innuendo to explain the application of the words as alleged in the complaint. Thus in Hays v. American Defense Society, 252 N.Y. 266, 169 N.E. 380, it is said flatly that 'Words which are not libelous in themselves cannot be made so by innuendo.'

 Proceeding then to a consideration of the second, third, fourth and seventh causes of action, we find that the frailties of the first cause of action are no less apparent in the other causes challenged. In the second cause of action it is alleged that Mrs. MacDougall, acting in behalf of her husband as agent, said to one Dorothy Russell Hope, a sister of plaintiff's wife, concerning the plaintiff: 'He is uncooperative about it and very didactic.'

 In the third cause of action it is alleged that MacDougall, in the presence and hearing of three other persons, Dahl, Lassiter and Siemon, said to the plaintiff: 'You are stabbing me in the back.' Dahl at that time was and now is the treasurer of the Queensboro Corporation, and affiliated corporations; Lassiter is a vice-president of these corporations, and Siemon was an attorney for each of them.

 In the fourth cause of action MacDougall said to one Rogers, concerning the plaintiff: 'I had to let him go.' Rogers, a lawyer, was at that time a director of the Queensboro Corporation.

 In the seventh cause of action it is alleged that MacDougall said to Mrs. MacDougall: 'Dyer has written and ...

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