Reinboth v. Ederheimer

BIJUR, J. The complaint alleges that plaintiff is a managing agent of a life insurance company; that in the course of his business he em [17] ployed various subagents, among whom was one Westworth; and that the defendant said of the plaintiff, in substance: “He drove that man [referring to Westworth] to suicide. * * * They all say he is responsible for that act, and nobody else.” [1, 2] It appears that the learned court below properly regarded the complaint as failing to set out a cause of action, because these words are not actionable per se, not tending to injure the plaintiff in his trade, occupation, or business, a defect which could only be cured by alleging special damages (Flatow v. Von Bremsen, 11 N. Y. Supp. 680; Anonymous, 60 N. Y. 262, 19 Am. Rep. 174), -and because the allegation that “his business has been and will be damaged in the sum of $500” did not adequately set forth special damages (King v. Sun Printing & Pub. Ass’n, 84 App. Div. 310, 82 N. Y. Supp. 787; Town Topics Pub. Co. v. Collier, 114 App. Div. 191, 99 N. Y. Supp. 575). The court below, however, denied defendant’s motion to vacate the order of arrest upon condition that plaintiff pay $10 costs of the motion, and serve, an amended complaint, after which the motion to vacate might be renewed. [3] Under section 558 of the Code, as appellant claims, where the' order of arrest accompanies the complaint, the order must be vacated if the complaint fails to set forth a cause of action. It is only where the order of arrest is applied for after the service of the complaint that leave may be granted to serve an amended complaint. While the papers on this appeal do not show that the order of arrest was granted to accompany the summons and complaint, that fact was conceded by respondent on the argument. [4] Respondent contends that the court, nevertheless, had power, under section 768, as amended in 1911 (Laws 1911, c. 763), to permit an amendment of the complaint; but I do not think that the failure of the complaint to state a cause of action may be regarded as a “technical defect” or an “insufficiency,” and surely not in this case, as one that can be “cured or supplied without prejudice to intervening rights.” Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur.