Labouisse v. Evening Post Publishing Co.

O’Brien, J. (dissenting):

The plaintiff was not only engaged on his own account, but was acting as agent for others in the purchase of cotton. To say of such a man that he is engaged in “an utterly reckless undertaking,” which is “ a great menace to the trade,” and which it is prophesied “ will end in disaster,” is not calculated to aid him or to inspire with confidence those who might desire to employ him in the business of buying cotton. But, without regard to these characterizations of the articles complained of, I think their whole tenor was directly calculated to affect him injuriously in his trade or occupation, and, there-fore, under the authority of Moore v. Francis (121 N. Y. 199), they were actionabley>í?r se. For, as therein held: Although no fraud or dishonesty is charged, words written or spoken tending to injure a man in his trade or occupation are actionable, and unless the defendant lawfully excuses them the injured party is entitled to recover without the allegation or proof of special damages.

I think the allegation of special damage was not essential to the cause of action and that the complaint was sufficient, and that the interlocutory judgment was erroneous and should be reversed, with costs.

Judgment affirmed, with costs.