asserted against them. It is not even proven that the bankers kept books or data from which the justice of the claims could have been verified, or their total amount determined. There is no proof that defendant, at any time before the coming in of the referee's report herein, knew, should have known, or had reason to believe, that the valid claims against the bankers exceeded $15,000. It is quite true that defendant could have deposited the sum of $15,000 in court, subject to the final judgment in the action, and thereupon obtained a temporary injunction restraining creditors of the principal from bringing individual suits against it, relegating them to the fund for payment. Illinois Surety Co. v. Mattone, 138 App. Div. 177, 122 N. Y. Supp. 928. But that imposes no duty on the surety so to do, unless it knows, or has means of knowing, that the aggregate of the valid, fixed, and undisputed claims against the principal, within the scope of the bond, exceeds the penalty thereof. In such a case, if the surety retained the amount of the bond and failed to deposit it in court, where it might earn interest, I would think it equitable that it should be charged with interest. But that is not the case at bar. [3] The form in which this action was brought was settled and affirmed in Guffanti v. National Surety Co., 196 Ñ. Y. 452, 90 N. E. 174, 134 Am. St. Rep. 848. Under it the judgment directs the payment by defendant to the individual creditors of their pro rata share of the amount of the bond, so that each claim required proof peculiar to itself. Each claimant must prove, not only the deposit of the money for transmission abroad, but the failure so to transmit. It was such failure for which defendant held itself ready to indemnify the creditors of the principal, but only up to a maximum amount of $15,000. This is its sole liability for the default of the principal. To impose an obligation upon it beyond that amount, whether in the form of interest thereupon or otherwise, can only be justified when there has been a default upon the part of the surety itself. Of that there is no proof in this case. The decision and judgment will therefore be modified, by striking out the award against defendant of interest to the amount of $7,200, thus reducing the judgment to $15,000, and by reducing the payments to the claimants proportionally. As thus modified, the judgment will be affirmed, with costs to appellants, payable out of the $15,000 fund. Settle order on notice. All concur. (96 Misc. Rep. 582) DAHM v. O'CONNELL. (Supreme Court, Special Term, Kings County. September, 1916.) 1. LIBEL AND SLANDER 86(1)—ACTIONS-PLEADING-INNUENDOES. Innuendoes in a complaint cannot give the language of an alleged libelous publication a broader application, but merely explain the application of the words used. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 205; Dec. Dig. 86(1).] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 2. LIBEL AND SLANDER 86(2)—ACTIONS-PLEADING-INNUENDOES. Where defendant in an action for slander is charged with stating that he will not allow plaintiff to look up the record of any member of the organization of which plaintiff and defendant are members, so that plaintiff could blackmail such member, an innuendo that the words impute the crime of blackmail is not warranted by the language used; the most the utterance can be said to impute being an intention to commit the crime, and not its commission. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 206; Dec. Dig. 86(2).] 3. LIBEL AND SLANDER 6(1)—“ACTIONABLE WORDS." "Actionable words" are such as naturally imply damage. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 6, 81⁄2, 15; Dec. Dig. 6(1).] 4. LIBEL AND SLANDER 7(1, 16), 8, 9(1), 12—“SLANDEROUS WORDS." There are five classes of "slanderous words": (1) Those that charge some punishable crime; (2) those that impute some offensive disease, which would tend to deprive a person of society; (3) those which tend to injure a person in his trade, occupation, or business; (4) those which have produced some special damage; (5) those that impute unchastity to a woman, which by statute are slanderous per se (Code Civ. Proc. § 1906). [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 17, 23, 71, 73, 74, 79, 80, 90, 97; Dec. Dig. 7(1, 16), 8, 9(1), 12. For other definitions, see Words and Phrases, First and Second Series, Slanderous Words.] Action by James H. Dahm against John S. O'Connell. On motion by plaintiff for judgment on the pleadings. Denied, and demurrer to complaint sustained. Motion by plaintiff for judgment on the pleadings. Defendant demurred to the complaint as not stating a cause of action. The action is for slander. The complaint alleges that, at a meeting of an organization of which the plaintiff and defendant are members, the defendant, in the presence and hearing of divers persons, and with intent to cause it to be believed, maliciously spoke to, of, and concerning the plaintiff the following false and defamatory words: "I will not allow Mr. Dahm (meaning the plaintiff), or any other members of the union, to look up or get any member's record so that he, Dahm (meaning the plaintiff), could blackmail said member;" that the defendant thereby intended to charge and injure the plaintiff in his good name and character and bring him into public scandal, and that the "said false and defamatory words were uttered by the said defendant maliciously and falsely so to be understood by the persons in whose presence and hearing they were spoken that the plaintiff herein was a blackmailer;" and that by reason of the uttering of said words plaintiff has been injured and damaged "in his good name, character, and in business in the sum of ten thousand ($10,000) dollars." Daniel J. McParland, of Brooklyn, for the motion. KAPPER, J. [1] Courts affix to words alleged as slanderous their ordinary meaning; consequently, when words claimed to import the commission of a crime are set forth as having been spoken by the defendant of the plaintiff, the first question is whether they impute a charge of crime. If they do, an innuendo, undertaking to state the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes same in other words, is useless and superfluous; and, if they do not, an innuendo cannot aid the averment, as it is a clear rule of law that an innuendo cannot introduce a meaning to the words broader than that which the words naturally bear. Pollard v. Lyon, 91 U. S. 233, 23 L. Ed. 308. Innuendoes in a complaint cannot give the language of an alleged libelous publication a broader application, because it is not the office of an innuendo to graft a meaning upon or to enlarge the matter set forth, but to explain the application of the words used. O'Connell v. Press Publishing Co., 214 N. Y. 352, 108 N. E. 556; Gallup v. Belmont, 16 N. Y. Supp. 483; Woodruff v. Bradstreet Co., 116 N. Y. 221, 22 N. E. 354, 5 L. R. A. 555. 1 [2] There can be no question regarding the meaning of the words here alleged to have been uttered. They plainly state that neither the plaintiff nor any other member of the organization to which the parties belong would be allowed by the defendant to obtain the record of members, so as to thereby enable the plaintiff to blackmail such member. The words plainly do not import the commission of crime. [3] Actionable words are doubtless such as naturally imply damage to the party; but it must be borne in mind that there is a marked distinction between slander and libel, and that many things are actionable when written or printed and published which would not be actionable if merely spoken, without averring and proving special damage. Pollard v. Lyon, supra. [4] According to the classification set forth by the Court of Appeals, slanderous words are those which (1) import a charge of some punishable crime; or (2) impute some offensive disease, which would tend to deprive a person of society; or (3) which tend to injure a party in his trade, occupation, or business; or (4) which have produced some special damage. Moore v. Francis, 121 N. Y. 203, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810. To this enumeration should now be added the imputation of unchastity to a woman, which by statute is slander per se. Code Civ. Pro. § 1906. The plaintiff's innuendo is that the words import the crime of blackmail, and thus come within the first of the foregoing classifications, but the innuendo is not warranted by the language used. At best, the utterance may be said to impute an intention or purpose to commit a crime. The mere intent to commit a crime, without an attempt by some overt act, is no offense, and a leading authority on the subject (Odgers, Lib. & Slan. 139) says that: "Spoken words which merely impute a criminal intention or design are not actionable, if no criminal act be directly or indirectly alleged." The authorities are numerous that to charge a person with intent to commit a crime or of having merely a purpose to commit a crime is not actionable. See Fanning v. Chace, 17 R. I. 388, 22 Atl. 275, 13 L. R. A. 134, and cases cited in note on page 135, 33 Am. St. Rep. 878. See, also, Weed v. Bibbins, 32 Barb. 320. 1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 62 Hun, 618. Plaintiff's reliance upon his claim of damage generally by reason of the per se character of the alleged slander, and without allegation of special damage, is unfounded in law, and the motion for judgment on the pleadings must be denied, and the demurrer sustained, with $10 costs. Ordered accordingly. (175 App. Div. 417) POLICASTRO v. SPRAGUE et al. (Supreme Court, Appellate Division, First Department. December 1, 1916.) 1. PLEADING 237(5)—COMPLAINT AMENDMENT. Where the complaint alleged that a customer ordered his broker to sell his margined stock when it reached $3 per share, and the broker denied receiving or accepting such an order, and where evidence of a stop loss order was received over the broker's objection and exception, the customer was improperly allowed to amend his complaint by alleging a stop loss order to conform to such evidence. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 606; Dec. Dig. ~237(5).] 2. BROKERS 38(3)-STOCKBROKERS-ACTIONS-ISSUES EVIDENCE. In such action, evidence that defendant had accepted the order alleged in the complaint and had in good faith attempted to sell the stock at ordered rate, and as to ratification, was inadmissible, where no such defense was set up in the answer. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 32; Dec. Dig. 38(3.] 3. DAMAGES 62(4)-MITIGATION-BREACH OF CONTRACT-BROKERS. In a customer's action for damages from his broker's failure to sell stock when a stop loss order at $3 was reached, where it was found that the broker could have sold the stock at $2.50, judgment for the broker, on a counterclaim, for the difference in the amount charged against the customer for the purchase of the stock and the proceeds of its sale at $2.50 per share, on the theory that the customer could have sold at $2.50 per share, and was bound to do so to minimize the damages, was erroneous, as the customer did not have the title to or possession of the margined stock, and was not required to sell and deliver it by buying in open market or by redeeming it from the broker's possession. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 128-131; Dec. Dig. 62(4).] 4. BROKERS 29-STOCKBROKERS-FAILURE TO EXECUTE ORDER-DAMAGES. Upon a customer's stop loss order, the broker must sell at the price fixed, if possible, or at whatever price it is possible to sell thereafter. [Ed. Note. For other cases, see Brokers, Cent. Dig. § 22; Dec. Dig. 29.] 5. BROKERS 38(7)—FAILURE TO EXECUTE ORDER-DAMAGES. On a broker's failure to sell a customer's margined stock on a stop loss order at $3, and where it appeared that after the stop had been reached the broker could have sold for $2.50 per share, the damage was the difference between the customer's stock at that figure, and the debits of the broker's account against him. [Ed. Note. For other cases, see Brokers, Cent. Dig. § 36; Dec. Dig. 38(7).] Appeal from Trial Term, New York County. Action by Nicholas Policastro against Charles S. Sprague and others. From a judgment entered in favor of the defendants for $2,202.50, with For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes interest upon a counterclaim, plaintiff appeals. Reversed, and new trial ordered. Argued before CLARKE, P. J., and SCOTT, SMITH, PAGE, and DAVIS, JJ. Neil P. Cullom, of New York City, for appellant. Louis J. Vorhaus, of New York City, for respondents. PAGE, J. The action was brought by the plaintiff to recover damages alleged to have been sustained by reason of the failure of the defendants, a firm of stockbrokers, to sell stock when the price limited in a stop loss order was reached. The defendants had purchased and were carrying on a margin account for the plaintiff 7,000 shares of the Jumbo Extension Mining Company stock. On December 1, 1914, the plaintiff testified that he gave a stop loss order at $3 per share. The defendant did not sell the stock and continued to carry it until the 5th and 6th of January, when the stock was sold at an average price of $1.50 per share. The defendants claim that the order that was given them to sell was not a stop loss order, but an order to sell at $3 per share, and claimed that it was impossible to sell the stock when and at the time it reached $3 per share, and that subsequently the plaintiff ratified and confirmed their failure to sell, and that the sale of 5,000 of the shares of the stock made in January was at the plaintiff's direction, and, further, the 2,000 shares were sold because of plaintiff's failure to further margin his account. No useful purpose would be served by reviewing the evidence. The trial was conducted with entire disregard of the pleadings or of the relevancy of the testimony to the issues involved. [1, 2] The complaint alleged that the plaintiff ordered the defendants to sell the stock at and whenever the stock reached $3 per share. The defendants denied that they ever received or accepted such an order. The plaintiff was improperly allowed to amend his complaint by alleging a stop loss order to conform to proof, although the evidence had been received over defendants' objection and exception; also evidence was received tending to show that the defendants had accepted the order alleged in the complaint and had in good faith attempted to sell the stock at $3 per share, and also ratification, although no such defense was set up in the answer. The court submitted special questions of fact to the jury, which, with the answers, are as follows: (1) Q. Was the order given by the plaintiff an order to sell the 7,000 shares of stock when it declined to $3 per share at $3, or at the best obtainable price thereafter? A. Yes. (2) Q. After the stock reached $3 per share, and prior to December 3d, could the defendants, in the exercise of reasonable care, have sold 7,000 shares at $3? A. No. (3) Q. If you find that they could not have sold said 7,000 shares at $3, could they have sold any part thereof at that price, and, if so, how much? A. No. (4) Q. At what price could the said 7,000 shares have been sold after the stock reached $3 per share and before December 3d? A. $2.50 per share. (5) Q. At what price could said 7,000 shares have been sold within a reasonable time after the plaintiff was notified that the stock had not been sold? A. $2.50 per share. 161 N.Y.S.-58 |