Drug Research Corp. v. Curtis Publishing Co. , 199 N.Y.S.2d 33 ( 1960 )

Desmond, Ch. J.

(dissenting). As the Appellate Division majority held, this entire article read as a whole in its ordinary meaning is naturally and proximately injurious to plaintiff and damaging to its credit and reputation (Samson United Corp. v. Dover Mfg. Co., 233 App. Div. 155, 156, citing 52 L. R. A. 526). If this pill manufactured by plaintiff does not reduce weight at all, as the article says, then no manufacturer could have produced it'without intending that it be sold under false pretenses (cf. Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 389, 390). Therefore, the complaint alleges a libel against plaintiff as well as against its product, and so no allegation of special damages is necessary.

The order should be affirmed, with costs.

Judges Fuld, Burke and Foster concur with Judge Dye; Chief Judge Desmond dissents in an opinion in which Judges Froessel and Van Voorhis concur.

Order reversed, with costs in all courts, and case remitted to Special Term for further proceedings in accordance with the opinion herein. Questions certified answered in the negative.