
    Levi B. Deddrick, Respondent, v. Alfred T. Mallery, Appellant.
    Third Department,
    March 8, 1911.
    Pleading — complaint — slander — failure to allege that words were spoken before third person.
    A complaint in an action for slander does not state a cause of action where the first of two separate subdivisions setting out the slanderous words does not allege that they were spoken in the presence of a third person or were heard or understood by any person other than the plaintiff, to whom they were addressed, even though a 2d subdivision states that the defendant called the plaintiff many other names of a vile, indecent and slanderous character, but not setting them forth, in the presence of other persons so as to make it believed that the plaintiff had been guilty of misdemeanor by violating the Penal Law relating to drunkenness, if neither subdivision refers in any way to the other.
    Kellogg, J., dissented.
    Appeal by the defendant, Alfred T. Mallery, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 22d day of September, 1910, upon the decision of the court, rendered after a trial at the Saratoga Special Term, overruling the defendant’s demurrer to the complaint.
    
      James A. Leary and Walter A. Fullerton, for the appellant.
    
      Worden W. Kelly and 8. M. Iiiohards, for the respondent.
   Sewell, J.:

The defendant demurred to the plaintiff’s complaint on the ground that it does not state facts sufficient to constitute a cause of action.

The action is for slander. The complaint contains two subdivisions. In the first it is alleged that In and about the month of May, 1910, on divers different days thereof at the Town of Corinth in the said county of Saratoga, and within the jurisdiction of this court, in a certain conversation or discourse had of and concerning the said ■ plaintiff, Levi B. Deddrick, the said defendant uttered false, malicious, slanderous and defamatory words of the plaintiff, to wit: ‘ You (meaning plaintiff) are a thief.’ ‘ You (meaning plaintiff) are a rat, a scab, a bastard and a drunkard.’ You (meaning the plaintiff) owe Harmon B. Ilathan a liquor bill of $130 and you won’t pay him.’ ” The second alleges : That said defendant at such time, in the presence of other parties, called the plaintiff many other names of a vile and indecent character, thereby maliciously and slanderously meaning to charge and make it believed that the plaintiff, Levi B. Deddrick, had been and was guilty of the crime or misdemeanor in that he (said plaintiff) had violated the Penal Law of the State of Hew York relating to drunkenness.”

The demurrer is founded in part on the proposition that the alleged slanderous words in the 1st subdivision, according to the allegations of the complaint, were not spoken in the presence of some person other than the plaintiff. If this is so, it is clear that the demurrer must be sustained, for the words complained of in the 2d subdivision are not set forth. This is necessary in order that the court may judge whether the words constitute a cause of action, and also because the defendant is entitled to know the precise charge against him and cannot shape his case until he knows it. It is not sufficient to give the substance or purport of the libel with innuendoes.” (Battersby v. Collier, 34 App. Div. 347.) “ It is well settled,” said Mr. Justice Chase in Drohan v. O'Brien (76 App. Div. 266), “ that in an action for slander the alleged slanderous words complained of as having been spoken by the defendant must be set forth in .the complaint, and it is not sufficient to set forth their tenor and effect,” and cited 13 Ency. PI. & Pr. 45; Battersby v. Collier (34 App. Div. 347); Ward v. Ciarla (2 Johns. 10); Forsyth v. Fdmiston (2 Abb. Pr. 430); Maitland v. Goldney (2 East, 426). There are words specifically stated in the 1st subdivision that are slanderous per se, but the difficulty here is, that it is not alleged that they were spoken in the presence of a third person or were heard or understood by any person other than the plaintiff to whom they were addressed.

There is no force in the contention of the plaintiff that the allegation in the 2d subdivision : “ That said defendant at such time, in the presence of other parties, called the plaintiff many other names,” is of itself a sufficient allegation that the slanderous words in the other part of the complaint were spoken in the presence of the same parties.

It appears by the complaint that the allegations in each subdivision were intended to be separate and distinct from the matter in the other. Each is made in the form and language which excludes the idea that what is in one subdivision should be added to the other. Neither in any manner refers to the other, or is capable of being construed as being dependent upon what is contained in the other. In construing pleadings it is the duty of the court to take the complaint or answer as it is framed and not to endeavor to sustain it by transposing or introducing a statement, not intended to be made a part thereof. If the intention had been to allege that the slanderous words in the 1st subdivision were spoken in the presence of other parties it would have- been easy to say so in so many words; not having done so the presumption is that no other party was present, for it is to be inferred that a party has stated his cause of action as favorably as possible for himself. I think the demurrer should have been sustained and that the interlocutory judgment should be reversed, with permission to the plaintiff to amend his complaint on payment of the costs of this appeal and in the court below.

All concurred, except Kellogg, J., dissenting.

Interlocutory judgment reversed and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs of this appeal and of the Special Term.  