Opinion
May 3, 1943.
Action to recover damages for malicious prosecution, false arrest and slander. Order denying motion of defendants, pursuant to rule 113 of the Rules of Civil Practice, to dismiss the complaint reversed on the law, without costs, and the motion granted to the extent of severing the first and second causes of action set forth in the complaint and granting final judgment to defendants as to those causes of action, pursuant to rule 114 of the Rules of Civil Practice, and otherwise denied, without costs. The existence of probable cause for the arrest and prosecution of the plaintiff was shown prima facie by action of the magistrate in holding plaintiff for trial at the Court of Special Sessions, the judgment of conviction of the latter court and the reversal by this court on the law. ( People v. Goldman, 264 App. Div. 863. ) There is no showing of facts by plaintiff in rebuttal of the presumption thus created, either by way of allegations in the complaint or of proof in opposition to the motion for summary judgment. ( Hopkinson v. Lehigh Valley R.R. Co., 249 N.Y. 296, 300; Graham v. Buffalo General Laundries Corp., 261 N.Y. 165; Green v. General Cigar Co., Inc., 238 App. Div. 638; Finsilver v. Still, 240 App. Div. 87; Levy v. Chasnoff, 245 App. Div. 607, 609; Dunn v. Gray Co., 254 Mass. 202.) The affidavit in support of the application for summary judgment does not deal specifically with the third cause of action, namely, for slander, and the contention of the defendants with respect to it is addressed to its alleged insufficiency in failing to set forth verbatim the alleged slanderous utterances attributed to the defendants. We are of opinion that the contention cannot be entertained on motion for summary judgment.
Close, P.J., Johnston and Lewis, JJ., concur; Hagarty and
We concur as to the first and second causes of action but are of opinion that the motion for summary judgment should be granted in its entirety. The third cause of action is insufficient on its face in failing to set forth the precise alleged slanderous utterances. ( Al Raschid v. News Syndicate Co., 265 N.Y. 1, 5; Battersby v. Collier, 34 App. Div. 347; Deddrick v. Mallery, 143 App. Div. 819; Crowell v. Schneider, 165 App. Div. 690.) Documentary proof of the defendants in support of their motion for summary judgment, showing that the alleged slander was closely associated with the arrest and prosecution of plaintiff, as to which there was a presumption of probable cause, was sufficient, pursuant to rule 113 of the Rules of Civil Practice, to place upon the plaintiff the burden of showing by facts a triable issue. There is no such showing, namely, of the precise place, time and utterances of the defendants. In any event, in the light of the insufficiency of the complaint, pursuant to the "other and further relief" sought by defendants in their notice of motion, the third cause of action should be dismissed, pursuant to rules 106 and 112 of the Rules of Civil Practice. Order denying in part and granting in part motion of defendants to vacate notices of examination before trial modified on the law as follows: By striking from the first ordering paragraph items 7, 11 and 14 of subdivision (a); by striking out subdivision (c) thereof and substituting therefor the following: "With respect to so much of item 8 as is set forth in subdivision (f) thereof;" by striking from subdivision (a) of the second ordering paragraph items 8, 12 and 15; by striking out the following: "9 and all the subdivisions thereof," and substituting in lieu thereof "so much of item 9 as is set forth in subdivision (f)"; and by striking out the last ordering paragraph of said order and substituting in lieu thereof: "ORDERED, that the defendants' motion to vacate plaintiff's notices of examinations before trial be and the same hereby is granted with respect to all items and subdivisions thereof except those items or subdivisions thereof expressly allowed in the foregoing ordering paragraphs." As thus modified, the order, insofar as appealed from, is affirmed, without costs, the examinations to proceed upon five days' notice. The modification is in accordance with the dismissal of the first and second causes of action, as determined in the concurrent appeal from the order denying defendants' motion for summary judgment. Close, P.J., Johnston and Lewis, JJ., concur; Hagarty and Taylor, JJ., concur insofar as the modification grants defendants' motion to vacate but otherwise dissent and vote to reverse the order, insofar as appealed from, and to grant the motion in its entirety.