Cruikshank v. Bennett

the complaint and proved. General damage cannot be recovered in such an action, but only special damage, and if the latter be not pleaded no cause of action is stated. In order to prove special damage in an action for either kind of libel, it must be specifically alleged in the complaint. For example, if loss of marriage, or of patients, clients, customers or contracts be claimed, the names and particulars must be stated therein. Odgers, Lib. & Sland. 308-318; Hallock v. Miller, 2 Barb. 630 . This rule of pleading is one so long established and understood in England and here that we do not find it questioned, unless now and then unintentionally here in recent decisions not deemed authoritative. In American Multiple Fabric Co. v. Eureka Fire-Hose Co., 18 Abb. N. C. 70 , the learned judge said that “the averment [in the complaint] that the plaintiff has lost many sales and profits which it would have made in its business but for the defendant’s acts,” was “an averment of special damage which the plaintiff need not have made, but having chose to make it must particularize.” But was not the contrary the case? For not particularizing, the allegation was not a sufficient allegation of special damage, and no evidence could be given under it. Childs v. Tuttle, 48 Hun, 228 . Why then a bill of particulars under it? It would be as reasonable to make a plaintiff give a bill of particulars of the facts constituting the fraud under a mere general allegation in the complaint of fraud, which is insufficient. In the case at bar, if the words impute adultery they are libellous per se. A written charge of adultery against man. or woman always was libellous per se. The strange intimation to the contrary in the dissenting opinion in the Gates Case, 155 N. Y. 234 , 49 N. E. 770 , is the first that seems ever to have been made. Cady v. Publishing Co., 23 Misc. Rep. 409 , 51 N. Y. Supp. 198 . The plaintiff evidently relies wholly on proof of general damage, for he has not pleaded any special damage, viz., the complaint has no allegation that patients were lost, giving their names. Why then does the defendant stir him up to give particulars and make proof of such damage? And if the libel were not such per se, the defendant would do better to demur to the complaint than help eke it out by this motion, for in that case without an allegation of special damage the complaint would not state a cause of action. Under the complaint the plaintiff can claim general damage only. That he is a physician is only an incident on the question of general damage. Who 'and what the plaintiff is, and his profession or trade, are always to be considered in an action for libel per se, on the, question of how much such a libel must have injured, such a man.''True, in such an action (i. e. for a libel per se) gen-1 eral damage includes general falling off of business or professional income (Odgers, Lib. & Sland. 318, 319); but a statement of the amount) of such falling off is not here asked for, if it could be. In Bergmann v. Jones, 94 N. Y. 51 , where the admission of evidence of such falling off under a general allegation of damage "tmbusinuss was sustained, the learned judge writing inadvertently speaks- of such dam- ' age as special damage. In the case of a libel per se, general damage ] to the plaintiff’s business, or in his profession or trade, is part and! parcel of the general damage which the law presumes that such a

libel causes, and may be recovered under a proper general allegation of damage; whereas the loss of particular customers, and the like, comes under the head of special damage, and unless specially alleged is not pleaded at all, and no evidence can be given of it.-g—

Tlae motion is denied with $10 costs.