Villemin v. Brown

Smith, J.:

In the second cause of action plaintiff complains of the defendant for having falsely uttered in the hearing of third parties of and concerning the plaintiff, “ Madame Villemin (meaning thereby the plaintiff) is a crook.” This cause of action further alleges that such words imputed dishonesty and *778 moral turpitude to the plaintiff which would subject her, if guilty, to imprisonment for the crimes of. obtaining money under false pretenses, theft and immorality, and that the third party' in whose presence the words were uttered understood the said words so spoken of plaintiff by the defendant to mean that the plaintiff was a crook, thief and robber. No special damages are pleaded and the plaintiff rests her claim solely upon the ground that the statement was slanderous per se.

It is unnecessary here to review the distinction well recognized between the rules which govern an action for libel and an action for slander. Many words written might be libelous •per se which would not be slanderous if merely spoken. The contention here is that the word “ crook ” is slanderous per se, because it imputes an indictable crime. This contention is, we think, unsupported by reason or authority. By common experience we know that the word “ crook ” is applied to persons who are not guilty of crime. In the Century Dictionary the word is defined as “ a dishonest person; one who is crooked in conduct; a tricky or underhand schemer; a thief; a swindler.” In the Oxford Dictionary crooked in referring to the quality of a person is defined as “ deviating from rectitude or uprightness, not straightforward, dishonest,' wrong, perverse.”

In Kuhne v. Ahlers ( 45 Misc. Rep. 454 ) it was held that to call one a swindler was not slanderous per se. (Gaynor, J., Trial Term.) The same is held in Chase v. Whitlock ( 3 Hill, 139 ) and Eisile v. Walther (24 N. Y. St. Repr. 122). In MacIntyre v. Eruchter ( 148 N. Y. Supp. 786 ) the court said, per Tompkins, J.: “The words a 'blackleg’ and ‘swindler’ have been held to be not slanderous per se. Chase v. Whitlock, 3 Hill, 139 ; Cyc. vol. 25, p. 225, etc. There are other cases holding that to charge one with being a ‘ cheat ’ and a ‘ damn black leg ’ and a ‘ swindler ’ is not slanderous unless used in connection with one’s business or trade. The words ‘ lousy blackguard ’ no more charge or import a crime than do the words ‘ cheat ’ or ‘ black leg.’ ” '

In Saville v. Jardine (2 H. Bl. 531) to charge one with-being a swindler was held not to be actionable per se.

In Phincle v. Vaughan ( 12 Barb. 215 ) the words,. “ You- *779 have sworn false under oath, you have lied under oath,” were held not slanderous per se.

In Savage v. Robery (2 Salk. 694) it was held not actionable to call a person a cheat.

Within these authorities as well as within the common use and acceptation of the term, I am of the opinion that the use of the word “ crook ” as charged in the complaint cannot be held to be actionable per se, and in the absence of an allegation of special damage or that the word was used in respect of the plaintiff’s business, no cause of action is stated.

The order so far as appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and plaintiff’s motion for judgment on the pleadings as to the second cause of action denied, with leave to the plaintiff to serve an amended complaint within twenty days upon payment of said costs.

Clarke, P. J., and Greenbaum, J., concur; Dowling and Page, JJ., dissent.