
    (81 Hun, 49.)
    GERM-PROOF FILTER CO. v. PASTEUR-CHAMBERLAND FILTER CO.
    (Supreme Court, General Term, First Department.
    October 12, 1894.)
    1. Libel and Slander—Complaint—Averment op Words Spoken.
    A complaint is fatally defective where it does not set out the particular words alleged to have been spoken by defendant.
    2. Same—Title to Property.
    Where the alleged slander consisted in saying that plaintiff’s goods infringed defendant’s patent; that plaintiff’s goods were falsely marked “Patented,”—the complaint is insufficient unless it alleges that plaintiff’s goods were patented, and the allegation that defendant falsely said that plaintiff had no patent is not equivalent to the allegation that plaintiff held a patent
    Appeal from circuit court, New York county.
    Action by the Germ-Proof Filter Company against the PasteurGhamberland Filter Company for slander and malicious injury to plaintiff’s business. The complaint was dismissed on the ground that it did not contain facts- sufficient to constitute a cause of action, and plaintiff appeals. Affirmed.
    
      The plaintiff is a corporation organized under the laws of this state, and the defendant is a corporation organized under the laws of the state of Ohio. These corporations are rivals in the business of manufacturing and selling water filters. It is alleged in the complaint that Whitall, Tatum & Co., a firm engaged in business at New York, Philadelphia, and Chicago, were the agents of the plaintiff to sell its water filters through said firm’s salesmen traveling in the United States, Canada, Central and South America, of which the firm had many. It is also alleged: “(6) That defendant is the manufacturer of a certain rival water filter, and that, with the intent and for the purpose of injuring the credit, reputation, business, and standing of plaintiff, defendant, by and through its officers, agents, and servants, at divers times during the months of May and June, 1891, falsely and maliciously uttered, published, and declared to members of the said firm of Whitall, Tatum & Company, and to their agents and servants, and to divers other persons to plaintiff unknown, the following false and defamatory matter, to wit: That plaintiff had infringed the patent of defendant, and had falsely, fraudulently, and for the purpose of deceiving the public, marked its (to wit, the plaintiff’s) filters with the word ‘Patented,’ when they were not patented; and that the president of the plaintiff would be arrested for falsely marking said filters, as aforesaid; and that he (to wit, the president of the plaintiff) had by that time no doubt been arrested; and plaintiff further alleges that the aforesaid statements were false, defamatory, and untrue to the knowledge of the defendant” A bill of particulars was served, in which it is stated that the words were spoken at the office of said firm at Chicago, May 28, 1891, and at its office at New York on the 12th and 20th of June, 1891. Itxis alleged that, by reason of the utterances complained of, plaintiff had been,greatly injured in its business with the aforesaid firm, which, by reason of the words, had ceased to sell its filters, to its damage in the sum of 810,000. When the case was brought to trial it was dismissed before the evidence was taken, on the ground that a cause of action is not stated in the complaint. Upon this order a judgment was entered, frcm which the plaintiff appeals.
    Argued before VAN BRUNT, P. J.. and FOLLETT and PARKER, JJ.
    Charles T. Haviland, for appellant.
    William M. Ivins, for respondent.
   FOLLETT, 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 bad. Ward v. Clark, 2 Johns. 10; Fox v. Vanderbeck, 5 Cow. 518; 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. 6 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 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 was rightly dismissed, on the ground that no cause of action is stated therein. The judgment should be affirmed, with costs. All concur.  