116 N.Y.S. 57 | N.Y. App. Div. | 1909
The action is for a libel, the defendant being the publisher of a daily newspaper known as the Morning Telegraph. The complaint alleges that the plaintiff is a theatrical manager and that the defendant caused to be published on December 14, 1907, an article which is set forth in the complaint. It was stated in that article that an action commenced by plaintiff against the Shubert Company had been decided against the plaintiff; that the plaintiff had decided to send his companies over Shubert’s circuit; that a contract was signed under which each side was to forfeit $25,000 for a violation of its terms; that on the plaintiff’s side he was restrained from hooking any company with Klaw & Erlanger; and, on the other hand, the Messrs. Shubert were to supply routes for the plaintiff’s companies; that the tours were brought to an end and the plaintiff filed suit for $25,000, asserting that he was not provided with time; that the Shuberts claimed that the plaintiff’s shows had been .closed by the
It is quite clear that this allegation is not a sufficient statement of special damage, and the right of the plaintiff to maintain the action must, therefore, depend upon whether this publication is libelous per se. It was privileged if it was a fair and truthful statement of a judicial proceeding, but the complaint alleges that it was not in that the Shuberts had never made the claim that the plaintiff’s shows had been closed because they were hot successful. The only statement in this publication which can be claimed to be libelous per se is that the booking firm (the Shuberts) claimed that the Perley shows had been closed by the proprietor because they were not successful, and through no fault of theirs.
■ The rule in relation to a publication affecting the plaintiff’s busi: ness or profession is stated in Sanderson v. Caldwell (45 N. Y. 398), as follows : “ When the words spoken have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are. actionable, although not applied by the speaker to the profession or occupation of the plaintiff.” In Moore v. Francis (121 N. Y. 199) the publication stated that
The utmost that can be said about the defendant’s publication is that it is an allegation that the plaintiff’s shows liad been closed by him because they were not successful. There was nothing in this statement that directly tended to injure the plaintiff in respect to his business or which impaired confidence in his character or ability. The fact that a business enterprise of any character has not been successful does not directly tend to injure the party conducting the enterprise. There is nothing but lack of success charged. It is not even charged that the lack of success was the fault of the plaintiff’s management or judgment. There is nothing charged against the plaintiff in relation to his profession or occupation ; nothing to indicate that the lack of success was -because of any fault of the plaintiff, or that his conduct of the shows liad caused their lack of success. A mere statement, of the publication shows that there was no charge made against the plaintiff in connection with his profession or occupation that would directly tend to injure the plaintiff or to impair confidence in his character or ability.
It follows that the publication was not libelous per se and the action can only be maintained if the publication had caused special damage.
The judgment appealed from must, therefore, be reversed, with
Patterson, P. J., Clarke, Houghton and Scott, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.