
    Trans-World Shipping Corp., Plaintiff, v. Leon Mitzman, Doing Business as A & B Music Box Co., Defendant.
    Supreme Court, Special Term, New York County,
    May 28, 1959.
    
      David Greenstein for defendant.
    
      Helmut Klestadt for plaintiff.
   George Tilzer, J.

Defendant moves for dismissal of the complaint for insufficiency.

The plaintiff is a custom house broker and foreign freight forwarder. The defendant is an importer. The action is based upon a letter written by the defendant to a supplier in Switzerland, which complains of the loss of a shipment by reason of failure of the plaintiff to provide appropriate insurance. The letter charges “ seeming neglect ”, failure “ to properly insure this shipment, an obligation which was manifestly within their province * * * was their sole responsibility * # * Since it is obvious that the 0. O. D. shipment to us was never effected, we must disclaim liability for such loss. * * * We deeply regret * * * the neglect and carelessness of the person in whose control and possession such shipments were and because of whose conduct we never received possession nor title thereto. ■ * * * We might add, that in view of this regrettable experience which we have had with Trans World, we would suggest that with respect to the 8,000 pieces, you should ship same through Fert & Co., in Basel, Switzerland, and we will definitely instruct them to insure this shipment.”

The communication with the third-party supplier with whom both parties have a community of interest in the existing business dispute relates solely to a single shipment and plaintiff’s conduct with respect to the enforcement of its claimed obligations concerning that sole shipment. There is nothing in the writing which implies fraudulent or dishonest action or anything of import implying unreliability with respect to the plaintiff’s general reputation.

There is no appropriate allegation of extrinsic fact which would render the writing relied on libelous. In any event, there is no allegation of special damage. The allegation that plaintiff has been damaged to the extent of $3,490.47, representing moneys paid and/or advanced by them for the goods represented by the shipment, is not an allegation of a special damage arising from the writing.

The motion is granted, with leave to plaintiff to serve an amended complaint within 20 days from service of a copy of this order with notice of entry.  