Reporters' Ass'n of America v. Sun Printing & Publishing Ass'n

Patterson, J. (dissenting):

I concur in the view that filie article of which the plaintiff complains is not libelous per se, but I dissent' from the' conclusion that there is a sufficient allegation of special damage such as is required, to enable the plaintiff to maintain the action. All that is alleged in the complaint in that regard is that the publication, so far as it related to the plaintiff, is false, and has caused to tlié plaintiff “ a serious loss in business,” and “ the refusal by clients to pay the just claims due by contract, and has greatly damaged the said plaintiff in credit and reputation.”

It is not disputed that the allegations of a serious loss of business and damage to the plaintiff in its credit and reputation are not good as stating special,damage, and, therefore, the sufficiency of the complaint ipust depend upon the simple phrase, “ the .refusal by clients to pay the just claims due by contract.” There is not an allegation of actual loss. If the claims are just arid due they may be recovered by action. There is no allegation that the plan tiff has been put to expense or will be, in efforts to collect the just claims due it. Nor can that be assumed for it may be indemnified in costs of actions instituted by it. Who the clients were, what the claims or the contracts were, are not set forth. The allegations are not only vague, but are as unsubstantial as would be one of loss of customers. Such an allegation would be entirely insufficient without giving the names of the customers. (Loftus & Co. v. Bennett, 68 App. Div. 131, and cases cited.) The rule in an- action for libel is of course the same as that in an action of slander, and in Linden v. Graham (1 Duer, 672) it is well stated as follows: “We apprehend that, in all actions of slander for words not in themselves actionable, the right to recover depends upon the question whether they caused special damage, and that the special damage must be fully and accurately stated. If the special damage was a loss of customers, or of a sale of property, the persons who ceased to be customers, or who refused to purchase, must be named. l Selden, R. 14, Kendall v. Stone.^* ”

I think the demurrer should have been sustained and that the interlocutory judgment should be reversed, but with permission to the plaintiff to amend its complaint on payment of costs of this appeal and in the court below.

Laughlin, J., concurred.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Order filed:

* Kendall v. Stone (5 N. Y. 14).— [Rep.