Opinion
January, 1901.
A.J. Oishei and T.J. O'Neill, for plaintiff.
Jay Candler, for defendant.
The defendant, in its newspaper, published the statements that anarchists were seen at the plaintiff's restaurant and boarding-house; that the plaintiff's place of carrying on said business was a resort favored by anarchists; that they were in the habit of meeting there, and that a prominent anarchist was a guest of honor at a dinner given at said restaurant; and also published a picture of the plaintiff's place of business, beneath which was printed, "Resort favored by the New York anarchists."
The action is for libel, and the defendant demurs to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action.
The plaintiff's allegation that the alleged defamatory matter was published concerning him is not admitted by the demurrer. The defendant, by demurring, admits only the publication and the falsity of the charge. Whether the publication is a libel must be determined by its examination, and not by the averment of the complaint. Fleischmann v. Bennett, 87 N.Y. 231; Wellman v. Sun Printing Publishing Co., 66 Hun, 331; Kennedy v. Press Publishing Co., 41 id. 422; Zinserling v. Journal Co., 26 Misc. Rep. 593.
An examination of the publication fails to show any personal reflection on the plaintiff in the conduct of his business or otherwise, or responsibility on his part for the character of his guests. The libel is on the plaintiff's place of business, not on himself; and the rule in such case is that the plaintiff has no action unless he alleges and proves that he has sustained special damages as a necessary or natural consequence of the publication. Tobias v. Harland, 4 Wend. 537; Kennedy v. Press Pub. Co., 41 Hun, 422; Dooling v. Budget Pub. Co., 144 Mass. 258; Boynton v. Shaw Stocking Co., 146 id. 219; Brentman v. Note, 3 N.Y.S. 420.
The complaint alleges that, by reason of the defendant's publication, the plaintiff "was held up to public scandal, ridicule, contumely and disgrace, and was thereby caused to be shunned by his patrons, neighbors, friends and fellow citizens, and was greatly injured in his business as a hotel, restaurant and boarding-house proprietor, all to his damage in the sum of $50,000." The averment is too general to constitute an allegation of special damage within the authorities. Langdon v. Shearer, 43 A.D. 607; Hallock v. Miller, 2 Barb. 630; Shipman v. Burrows, 1 Hall, 442; Erwin v. Dezell, 64 Hun, 391; Smid v. Bernard, 31 Misc. 35; Zinserling v. Journal Co., 26 id. 593.
Demurrer sustained, with costs.