Opinion
June 17, 1965
Order entered on June 2, 1964, unanimously reversed, on the law and the facts, with $30 costs and disbursements to appellant, and the motion to dismiss the amended complaint denied. On the pleadings, in the context in which the quoted language appears, it cannot be said as a matter of law that the words "You are a liar and a thief" were or were not spoken so as to touch or be in reference to plaintiff's trade or profession with respect either to the real estate business or as an attorney and his conduct in either capacity. We hold only that upon the basis of the facts alleged in the complaint the quoted language is actionable per se. Resolution of that question depends upon determination of the preliminary issue. The plaintiff is required to plead and prove the words were spoken in reference to his trade or profession and also that they referred to his conduct in such trade or profession. ( Gurtler v. Union Parts Mfg. Co., 285 App. Div. 643; Jordan v. Lewis, 20 A.D.2d 773; 1 Harper and James, Torts, p. 381 et seq.)
Concur — Botein, P.J., Rabin, McNally, Stevens and Eager, JJ.