Dyer v. Macdougall

201 F.2d 265 (2nd Cir. 1952)


Dyer (P) accused MacDougall (D) of libel and slander on four different counts. D moved for dismissal of three of the counts and provided affidavits from the parties alleged to have uttered the slanders that they did not do so. The first count alleged that D had said of P at a directors' meeting of the 'Queensboro Corporation': 'You are stabbing me in the back.' The second count alleged that D had written a letter to Dorothy Russell Hope, P's wife's sister, containing the words: 'He'- the plaintiff- 'has made false statements to my clients in Philadelphia,' and 'He has presented bills for work he has not done.' The third count alleged that D had said to a lawyer, named Almirall, that a letter sent out by P to the shareholders of the 'Queensboro Corporation' was 'a blackmailing letter.' The fourth count alleged that D's wife had said to Mrs. Hope that P had 'written and sent out a blackmailing letter.' Ds unequivocally denied the utterance of the slanders attributed to him or her; and Almirall and Mrs. Hope denied that he or she had heard the slanders uttered. P replied with several affidavits of his own, the contents of all of which would, however, be inadmissible as evidence at a trial upon the issue of utterance. P was offered the opportunity to take depositions and refused to do so. D's motion for summary judgment was decided, and the third and fourth counts were dismissed on grounds that P would have no evidence to offer to support the slanders except the testimony of the witnesses, all of whom denied their utterance. P appealed.