
    Germ-Proof Filter Company, App’lt, v. Pasteur-Chamberland Filter Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 12, 1894.)
    
    1. Pleadings—Complaint—Slander.
    A complaint, in an action for slander, which does not set out the words spoken, is bad.
    2. Same.
    A complaint, in such action, for injury to plaintiff’s business from saying that he falsely marked his goods “ patented,” must allege that plaintiff held a patent.
    
      Appeal from a judgment, dismissing the complaint on the ground that it did not contain facts sufficient to constitute a capse of action.
    
      Charles T. Haviland, for app’lt; William M. Ivins, for resp’t,
   Eollett, J.

The complaint is fatally defective in two particulars :

1. The particular words spoken' by defendant’s officers and agents are not alleged, and a complaint which does not set out the words spoken is liad. Ward v. Clark, 2 Johns. 10; Fox v. Vanderbeck, 5 Cow 513; Blessing v. Davis, 24 Wend. 100; Finnerty v. Barker, 7 N. Y. Leg. Obs. 316; Forsyth v. Edmiston, 2 Abb. Pr. 430; Cook v. Cox, 3 Maule & S. 110; Harris v. Warre, 4 C. P. Div. 128; Townsh. Sland. & L. (4th ed.) 329; Starkie Sland. & L. (3d Eng. ed.) 343; Id. (Wood’s ed.) 425; Odgers Sland. & L. 528; 13 Am. & Eng. Enc. Law, 456; Newell Defam. 640 et seq. Several cases cited also hold that this defect is not cured by a verdict.

2. The gravamen of the complaint is that defendant’s officers and agents said that the plaintiff’s filters were an infringement on defendant’s patent, and that they (plaintiff’s filters) were not patented, and were falsely marked “ Patented.” It is not alleged that plaintiff’s filter was patented. In actions for slander of title it is necessary for the plaintiff to allege and prove that he owned the property spoken of, and in an action to recover damages for saying that a particular article is not patented the plaintiff must allege and prove that it was. An allegation that defendant' falsely said that the plaintiff had no title, or no patent, is not equivalent to an, allegation that plaintiff had title or held a patent. In case words are not actionable, unless certain circumstances exist, these circumstances must be alleged in order to state a cause of action.

The count (eighth) for malicious prosecution need not be considered, for it is not alleged that the action complained of has been terminated in the plaintiff’s favor. Without considering the other questions raised, we think the complaint wus rightly dismissed, on the ground that no cause of action is stated therein.

The judgment should be affirmed, with costs.

All concur.  