Opinion
June Term, 1903.
Stillman F. Kneeland, for the appellant.
Franklin Bartlett, for the respondent.
This action was brought to recover damages for an alleged libel. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the plaintiff has appealed. The article complained of was published of and concerning the plaintiff and his business; and such facts, by proper innuendo, were sufficiently alleged in the complaint. The article, however, is not libelous per se, and, therefore, is not actionable unless the plaintiff has sustained, by reason of its publication, some pecuniary damage which necessarily and as a legal result flows from the publication ( Bassell v. Elmore, 48 N.Y. 561), and facts showing that such damage has been sustained must be fully and specifically set forth in the complaint. The complaint is quite voluminous, and after setting forth the business of the plaintiff, the work in which he is engaged, the article at length, and the meaning intended to be conveyed by it, concludes: "That by reason of the premises the plaintiff has been injured in his reputation and credit personally and in respect to the publication of the work of art specified in the previous paragraphs and in respect to his general business as publisher by reason of said premises, and has been prevented, and will be prevented from procuring subscriptions for and making sales of said various publications and has had and will have the effect of ruining said businesses, all to his damage in the sum of fifty thousand ($50,000) dollars."
This is not a sufficient allegation of special damage to enable plaintiff to maintain the action, within the authorities ( Langdon v. Shearer, 43 App. Div. 607; Erwin v. Dezell, 64 Hun, 391; Linden v. Graham, 1 Duer, 672; Hallock v. Miller, 2 Barb. 630), and, therefore, the demurrer was properly sustained. How or in what way the plaintiff has been damaged in respect to the publication of the work of art referred to, or in his general business prevented or will be prevented from procuring subscriptions, or how or in what way the publication has had or will have the effect of injuring his business, is not stated. To recover special damages these facts must be specifically alleged in the complaint and proved at the trial; and in the absence of allegations of such facts we do not think the complaint states a cause of action.
The demurrer, therefore, was properly sustained, and the judgment appealed from must be affirmed, with costs, with leave, however, to the plaintiff to serve an amended complaint on payment of the costs in this court and in the court below.
PATTERSON, INGRAHAM and HATCH, JJ., concurred; LAUGHLIN, J., dissented.
I dissent, on the ground that the article is libelous per se, and that it is also susceptible of the meaning ascribed to it in the innuendo; and I think the innuendo does not limit the plaintiff in his claims, for the reasons stated in my dissenting opinion in the case of Morrison v. Smith ( 83 App. Div. 206).
Judgment affirmed, with costs, with leave to the plaintiff to amend on payment of costs in this court and in the court below.