Fleischer v. Champion Sports Publishing Corp.

In an action to recover damages for libel, defendants appeal from an order of the Supreme Court, Westchester County, dated January 25, 1961, denying their motion to dismiss the complaint for insufficiency, pursuant to subdivision 4 of rule 106 of the Rules of Civil 994 Practice. Order affirmed, with $10 costs and disbursements. The defendants’ time to answer is extended until 20 days after entry of the order hereon. In our opinion, the complaint is not insufficient for failure to allege special damages, because a jury may reasonably find that the article tends to disparage plaintiff in his occupation as a judge of boxing bouts. Since the article is alleged to refer specifically to plaintiff and is libelous per se, or so a jury may find, special damages need not be alleged (Polakoff v. Hill, 261 App. Div. 777). Beldock, Acting P. J., Ughetta, Kleinfeld and Pette, JJ., concur; Christ, J., dissents and votes to grant the motion, on the grounds: (1) that the article complained of was fair comment and was within the legitimate range of sports writing; and (2) that, in any event, special damage must be alleged.