Reporters' Ass'n of America v. Sun Printing & Publishing Ass'n

Houghton, J.: The defendant demurs to the plaintiff’s amended complaint on the ground that it fails to state a cause of action. ■ The plaintiff is a corporation and brings this action against the defendant for pn-blication of a libel. The article which is alleged to "be libelous against this plaintiff related especially to criticisms concerning the Newsboys' Mag'azvne-and its management —. with respect to" which it was said: “ Booséyelt called police.— .And got back' his letter from Newsboy employees. ' Blue Pencil Grafters have exchanged men [247] dicancy for peddling certificates of stock in philanthropic plant.—■ $250,000 to sell.—Watch your check book ”—with other'statements with respect to the Newsboys’ company and its agents being shadowed, and that many concerned in the publication had police records, probably in possession of the chief of police still. Then follows that portion of the article relating to the plaintiff, wherein it is said that “Washington had been fruitful of checks until this,'but thereafter the activity was transferred to this City (New York). The beggars have been- busy here ever since. Subscription lists seem to have been exchanged along the Press Artists’ League,’ the Reporters’ Association of America,’ ‘ The Interstate Press,’ and a score of other concerns organized for the same purpose, because the canvassers have always seemed to hit on the same easy marks.” The innuendo is alleged to be that this plaintiff is engaged in “ grafting,” and was being shadowed by the police, and was associated and concerned with peopl^^th police records, and was procuring money by swindling anafki’se representations. ‘ The article does not charge actual crime even on the part of the Newsboys' Magazine, or its promoters or managers. The most that can be said is that it is pointed out as a concern sailing "under false colors, not philanthropic but an .institution organized for the benefit of its organizers. The statement is that this plaintiff is a concern organized for the same purpose. The defendant claims that the article is not libelous per se. We think this contention is correct. The complaint, however, alleges special'injury to plaintiff’s business which made it proper to overrule the demurrer. The innuendoes alleged by the ‘plaintiff do not legitimately flow from the article. - What is said with respect to the Newsboys’ Magazine as to “grafters” and “police,” and “police records,” cannot be said to legitimately refer to this plaintiff. What " does "fairly refer to this plaintiff is that it is begging subscriptions and is organized for the purpose of benefiting itself and allied concerns. That a corporation is a suppliant for favors, and that it is allied with like corporations does not necessarily injure its business or credit, or accuse it of improper conduct or management or fraud. A corporation can maintain an action for libel. When language is used concerning it which is defamatory in itself and injuriously and directly affects its credit and necessarily and directly occasions [248] pecuniary injury, it is libelous per se. When the words are not such as to make them lib,elous per se special damage must be alleged and pro veri. (Union Associated Press v. Heath, 49 App. Div. 247.) The words not being actionable per se the plaintiff has, however, met the requirement rif pleading special damages by its allegation that it has met with serious loss in business, by refusal of clients to pay the just claims due by contract to-it. The plain tiff-is engaged in publishing a magazine known as'The Public Inspector. Its contracts presumably are valuable, and while the allegation with respect to damage in this respect is not as full and specific as it might be made or as is desirable, yet we think it does not come within the condemnation of the, rule laid down by this court in King v. Sun Printing Publishing Association (84 App. Div. 310). In that case there was, a general, allegation that plaintiff had beén ruined in his'business, and had been and would be prevented from procuring subscriptions and making sales of various publications. Here the allegation is that the plaintiff has. been put to serious loss in its business by the refusal of' clients to pay just claims due upon contracts. The plaintiff’s damages should be confined to the loss sustained in that manner. What those damages may be composed of, whether more than the cost incurred in enforcing the contracts, we do not feel called upon now to decide. It is sufficient for the demurrer that Some special damage is alleged, notwithstanding the article was riot libelous per se. From our view of the article complained of, and' the allegation with respect to special damage, it follows that the demurrer was properly overruled. The'interlocutory judgment .should be affirmed," with costs, with leave to the defendant to withdraw its' demurrer and to plead upon payment of the costs of appeal and of the trial court. O’Brien, P. J., and McLaughlin, J., concurred; Patterson and Laughlin, JJ., dissented.