294 N.Y. 460 | NY | 1945
This is a libel action, the substance of plaintiff's grievance being that in an article and an editorial published in defendant's newspaper, on July 14, 1942, plaintiff, as he claims, was accused of having been disloyal to the Government of the United States and its war effort. In the complaint are set forth two alleged causes of action but each such cause of action is based on the same two July 14, 1942, publications. In each cause of action there are pleaded four separate items of alleged special damage, also general damages, those statements of damage, special and general, being the same in each count. At Special Term defendant moved under section 476 of the Civil Practice Act, to dismiss on the pleadings both causes of action excepting those paragraphs which aver special damage, defendant's claim in this connection being that the article and editorial were not libelous per se. As another branch of that motion, defendant, under rules 113 and 114 of the Civil Practice Act, *463 prayed for partial summary judgment dismissing, as to each cause of action, those paragraphs thereof which put forth the four claims of special damage, defendant urging that as to those items of damage there were, in the light of documentary proof presented by defendant on the motion, no triable issues of fact. If the motion had been granted as to both its parts, the result would have been a dismissal of the entire action. Special Term denied the motion in all respects.
The Appellate Division held that the publications were not libelous per se and that, accordingly, the complaint was insufficient to sustain any recovery of general damages. As to the claimed special damages, the Appellate Division was of the opinion that as to one item thereof, set forth in the paragraph of the complaint numbered "8" there was no triable issue of fact, so that the particular item could not properly remain in the complaint. The Appellate Division's order modified the Special Term order by inserting therein provisions "granting the motion to the extent of granting judgment on the pleadings dismissing the two causes of action insofar as they concern general damages", also "granting partial summary judgment dismissing the claimed special damages under paragraph `8'". Judgment was entered accordingly and plaintiff appealed to this court.
In Manko v. City of Buffalo (
Since the paper entered on the Appellate Division order is in terms and in effect a judgment, we have jurisdiction to review it, and, accordingly, we do not dismiss the appeal but reverse it. In so doing we express no opinion as to the merits of the questions argued.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY, THACHER and DYE, JJ., concur.
Ordered accordingly.