Town Topics Publishing Co. v. Collier

99 N.Y.S. 575 | N.Y. App. Div. | 1906

McLaughlin, J.:

This action was brought to recover damages sustained by the publication of an alleged libel. The complaint charges that the plaintiff is a domestic corporation engaged in publishing a weekly periodical knoXvn as Town Topics, and that the defendants are copartners engaged in publishing a periodical called Collier’s, the National Weekly / it then sets out the article published, and alleges that by reason thereof “ the plaintiff has been greatly injured and damaged in its fair name and credit, and has suffered and will continue to suffer great loss in its revenues and profits from advertising, sales and subscriptions, and that persons have declined and refused further to deal with the plaintiff to the plaintiff’s damage in the )um of One hundred thousand dollars ($100,000).”

The answer admits the incorporation of the plaintiff; the publieation as charged in the complaint; that the same referred to the plaintiff; denies- the other material allegations of the complaint, and then sets up four separate and distinct defenses.

After issue had been joined the defendants moved for a bill of .particulars of the amount of injury and damage to the credit of the plaintiff and the amount of loss to its revenues and profits from advertising, sales,and subscriptions, together with the names and addresses of all persons who have declined and refused further to deal with the plaintiff. The motion was denied and defendants have appealed.

The article is libelous per se. It, in effect, charges plaintiff with blackmail. The defendants are not entitled to a bill of particulars of the "items of the general damage sustained, if any, by reason of such publication. (Commercial National Bank v. Hand, 9 App. Div. 614; Bell v. Heatherton, 66 id. 603; Stokes v. Stokes, 72 Hun, 372.) By general damage is meant the damage which the law presumes must naturally, proximately and necessarily result from the publication. (Le Massena v. Storm, 62 App. Div. 150.) Special damage is such as is the natural and proximate) but not the necessary, result of the libelous publication. (18 Am. & Eng. Enóy. of Law [2d ed.], 1085.) If an article be libelous per se, then the law presumes general damages to have been sustained, and it is not necessary, in order to justify a recovery on that ground, that the damages should have been specifically pleaded or proved. (Palmer v. New York News Pub. Co., 31 App. Div. 210.) But when it is sought to recover special damages the same must not only be pleaded but proved.

The allegation of the complaint is to recover general and not special damage. (Langdon v. Shearer, 43 App. Div. 607; King v. Sun Printing & Pub. Assn., 84 id. 310; affd., 179 N. Y. 600.) How or in what way plaintiff has suffered great loss in its revenues and profits from advertising, sales and subscriptions is not stated, nor are any facts stated in connection with such allegation from which damages can possibly be inferred other than that persons “have declined and refused further to deal with plaintiff.” This, I think, is an insufficient allegation to recover special damages, inasmuch as the facts showing the damage must be set out in order to justify a recovery upon that ground.

The order appealed from, therefore, should be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Order filed.