
    Moses King, Appellant, v. The Sun Printing and Publishing Association (Sued as The Sun Printing and Publishing Company), Respondent.
    
      A complaint, not alleging matter libelous per se, must allege pecuniary damages • necessarily resulting from the publication.
    
    
      A complaint in an action of libel, based upon a publication which is not libelous per se, is demurrable unless it alleges some pecuniary damage which necessarily and as a legal result flowed from the publication, and fully and specifically sets forth facts showing that such damage has been sustained;
    An allegation contained in the complaint in an action of libel based upon such a publication, which alleges, “ That by reason of the premises the plaintiff has been injured in his reputation and credit personally and in respect to the publication of the work, of art specified in the previous paragraphs and in respect' to his general business as publisher by reason of said premis'es, and has been prevented, and will lie prevented from procuring subscriptions for and making sales of said various publications and has had and will have the effect of ruining said businesses, all to his damage' in the sum of -fifty thousand ($50,000) dollars,” is not a sufficient allegation of special damages to enable the plaintiB to'maintain the action.
    Laughlin, J., dissented on the ground that the article was libelous per se.
    
    Appeal by the plaintiff, Moses King, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of April) 1903, upon the decision of the.court, rendered after a trial at the New York Special Term, sustaining the defendant’s , demurrer to the plaintiff’s complaint. ■
    
      Stillman R. Rneeland, for the appellant.
    
      Rranldin Bartlett, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages for an alleged libel. The defendant demurred to the complaint upon the ground' that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the plaintiff has appealed. The article complained of was published of and concerning the plaintiff and his business; and such facts, by proper innuendo, were sufficiently alleged in the complaint. The article, however, is not libelous jper se, "and, therefore, is not actionable unless the plaintiff has sustained,, by reason of its publication, some pecuniary damage which necessarily and as a legal result flows from the publication (Bassell v. Elmore, 48 N. Y. 561), and facts showing that such damage has been sustained must be fully and specifically set forth in the complaint. The complaint is quite voluminous, and after setting forth the business of the plaintiff, the work in which he is engaged, the article at length, and the meaning intended to be conveyed by it, concludes : “ That by reason of the premises the plaintiff has been injured in his reputation and credit personally and in respect to the publication of the work of art specified in the previous paragraphs and in respect to his general business as publisher by reason of said premises, and has been prevented, and will be prevented from procuring subscriptions for and making sales of said various publications and has had. and will have the effect of ruining said businesses, all to liis damage in the sum of fifty thousand ($50,000) dollars.”

This is not a sufficient allegation of special damage to enable plaintiff to maintain the action, within the authorities (Langdon v. Shearer, 43 App. Div. 607; Erwin v. Dezell, 64 Hun, 391; Linden v. Graham, 1 Duer, 672; Hallock v. Miller, 2 Barb. 630), and, therefore, the demurrer was properly sustained. How or in what way the plaintiff has been damaged in respect to the publication of the work of art referred to, or in his general business prevented or will be prevented from procuring subscriptions, or how or in what way the publication has had or will have the effect of injuring his business, is not stated. To recover special damages these facts must be specifically alleged in the complaint-and proved at the trial; and in the absence of allegations of such facts we do not think the complaint states a cause of action.

The demurrer, therefore, was properly sustained, and the judgment appealed from must be affirmed, with costs, with leave, however, to the plaintiff to serve an amended -complaint on payment of the costs in this court and in the court below.

Patterson, Ingraham and Hatch, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

I dissent, on the ground that the article is libelous p&r se, and that it is also susceptible of the meaning ascribed to it in the innuendo; and I think the innuendo does not limit the plaintiff in his. claims, for the reasons stated in my dissenting opinion in the ease of Morrison v. Smith (83 App. Div. 206).

Judgment affirmed, with costs, with leave to the plaintiff to amend on payment of costs in this court and in the court below.  