186 N.Y. 437 | NY | 1906
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The sufficiency of this complaint depends upon its allegation of the special damage, which the plaintiff claims to have sustained from the alleged libellous publication. That a corporation has the right to maintain an action of libel, when the publication assails its management, or credit, and inflicts injury upon its business, or property, is a proposition, which is true upon principle and which has the support of authority. (See Newell on Slander and Libel, p. 360 and cases cited.) It is as much entitled to the protection of the law, in those respects, as is the natural person. It differs from the latter, in that it has no character to be affected by a libel; but its right to be protected against false and malicious statements, affecting its credit, or property, should be beyond *441
question. There has been some dispute in the cases as to the necessity of setting out the specific damage, which a corporation claims to have suffered from a libellous publication; but I regard the better rule to be that such an averment is not necessary, when the language is of so defamatory a nature as to directly affect credit and to occasion pecuniary injury. (SeeShoe Leather Bank v. Thompson, 18 Abb. Pr. 413;Knickerbocker L. Ins. Co. v. Ecclesine, 2 J. S. 76; UnionAssoc. Press v. Heath,
The disagreement of the Appellate Division, in this case, was upon the question of the special damage alleged. That special damage must be alleged, the article not being libellous per se,
was conceded; but the dissent was from the opinion that the allegation was sufficient, that the publication etc. "has caused to this plaintiff a serious loss in business, the refusal by clients to pay the just claims due by contract and has greatly damaged the plaintiff in credit and reputation." Under the settled rule, whenever special damage is claimed, the plaintiff must state it with particularity, in order that the defendant may be enabled to meet the charge. (1 Chitty on Plead. 414; Newell on Slander Libel, 634; Linden v. Graham, 1 Duer, 670; Bassil
v. Elmore, 65 Barb. 627; Cook v. Cook,
In Linden v. Graham, (supra), it was said of an action of slander, (and the same rule would apply), that "the special damage must be fully and accurately stated. If the special damage was a loss of customers * * * the persons who ceased to be customers, or who refused to purchase, must be named; and that, if they are not named, no cause of action is stated. (1 Selden, 14; Kendall v. Stone)." In Tobias v. Harland, (4 Wend. 537), the slanderous words were spoken of articles manufactured by the plaintiff, whereby divers persons refused to purchase them. It was held that "the general allegation of the loss of customers is not sufficient to enable the plaintiff to show a particular injury," (English cases *443
being cited), and the demurrer was sustained. In Chitty's Pleading, (supra *p. 424), it is said "the general rule is that when the law infers damage and the words are actionable, without special damage, none need be laid in the declaration; but that it is otherwise when the words are only actionable in respect of the particular injury resulting therefrom," and the rule is pertinently illustrated by the author. The reason for the rule should be quite obvious. If the article complained of is not defamatory of itself, damage is not implied in law. But if the plaintiff, nevertheless, charges that damage has actually occurred, as the result of the publication, then he should aver what it was and with such particularity as that it shall appear to be the legal, natural and proximate, if not the necessary, consequence of the article. (Terwilliger v. Wands,
The damage charged in this complaint is a loss in business from the refusal of clients to pay just claims due upon contract. That, however, is, in effect, a statement that the loss was occasioned by the wrongdoing of a third person and, therefore, it cannot be the legal and proximate result of the defamation. For a contract debtor to refuse payment of his indebtedness is an illegal act, for which the law affords a complete remedy by an action; in which a full indemnity is presumed. A breach of contract is an illegal act and it could not be regarded as the legal consequence of the alleged libellous article. (Kendall v.Stone,
For these reasons I think this complaint failed to state a sufficient cause of action, according to the rules of pleading, which have been laid down in the books and which commend themselves as being reasonable.
I advise, therefore, that the question certified be answered in the negative; that the order and judgment appealed from be reversed and that the defendant have judgment dismissing the complaint, with costs in all the courts; but with leave, however, to the plaintiff, within twenty days from service of the order and upon payment of the costs, to amend its complaint.
CULLEN, Ch. J., HAIGHT, VANN and WERNER, JJ., concur; HISCOCK, J., concurs on ground last stated in opinion; WILLARD BARTLETT, J., not sitting.
Ordered accordingly.