
    FAGAN v. NEW YORK EVENING JOURNAL PUB. CO.
    (Supreme Court, Appellate Division, Second Department.
    November 27, 1908.)
    1. Libel and Slandeb (§ 13)—Abticle Not Libelous Peb Se—Pboof of Special- Damages.
    Where a newspaper article is not libelous per se, it is not actionable unless special damage is the immediate and legal consequence of its publication, from which pecuniary injury has resulted.
    [Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 97; Dec. Dig. § 13.*]
    2. Libel and Slandeb (§ 97*)—Pleading—Failure to Plead Special Damages—Demurrer.
    The objection that special damages are not sufficiently pleaded in a libel action may be taken by demuTrer on the ground that the complaint does not state facts sufficient to constitute a .cause of action.
    [Ed. Note.-—For other cases, see Libel and Slander, Cent. Dig. § 234; Dec. Dig. § 97.*]
    
      3. Libel and Slandee (§ 80)—Actions—Complaint—Sufficiency—Identi-fication of Plaintiff.
    Where a complaint in a libel action alleged that plaintiff for more than three years preceding the publication of an alleged libelous newspaper article had been a member of a Telegraphers’ Union, while the article described the person of whom it was written as a nonunion telegraph operator in the employ of a certain company, and it appeared that plaintiff had not been employed by that company for nine years, the complaint was demurrable as not stating facts sufficient to constitute a cause of action, since it appeared on its face that the article was not published of, and concerning, plaintiff.
    [Ed. Note.—For other cases, see Libel and Slander, Dec. Dig. § 80.*]
    Appeal from Special Term, Kings County.
    Libel action by Edward E. Fagan against the New York Evening Journal Publishing Company. A demurrer to the complaint was overruled, and defendant appeals.
    Reversed and demurrer sustained with leave to plaintiff to plead over.
    Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.
    Edward A. Freshman, for appellant.
    T. F. von Dorn, for respondent.
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   RICH, J.

The defendant demurred to the complaint in an action to recover damages for an alleged libel. The demurrer was overruled, and, from the interlocutory judgment accordingly entered, the defendant appeals.

The article alleged to constitute the libel is not libelous per se. Consequently special damages arising from the publication must be alleged to have been sustained by the plaintiff. The article is not actionable unless special damage was the immediate and legal consequence of its publication, from which injury of a pecuniary nature resulted to the plaintiff. Langdon v. Shearer, 43 App. Div. 607, 60 N. Y. Supp. 193; Beecher v. Press Publishing Co., 60 App. Div. 536, 69 N. Y. Supp. 895; King v. Sun Printing & Publishing Ass’n, 84 App. Div. 310, 82 N. Y. Supp. 787; Walker v. Best, 107 App. Div. 304, 95 N. Y. Supp. 151. The objection that special damages are not sufficiently pleaded may be taken by demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. Langdon v. Shearer, supra; Reporters’ Association v. Sub Printing & Publishing Co., 186 N. Y. 437, 79 N. E. 710. The complaint in this action insufficiently pleads special damages, and the demurrer was improperly overruled. Pettibone v. Simpson, 66 Barb. 492; Beach v. Ranney, 2 Hill, 309; Bosi v. New York Herald Co., 33 Misc. Rep. 622, 68 N. Y. Supp. 898; Casale v. Calderone, 49 Misc. Rep. 555, 97 N. Y. Supp. 1102; King v. Sun Printing & Publishing Ass’n, supra.

There is another reason why the interlocutory judgment should be reversed. The plaintiff alleges that for more than three years preceding the alleged libel he had been a member in good standing of the Commercial Telegraphers’ Union of America, with the members of which organization throughout the United States he had an extensive personal acquaintance, and his main grievance is that, by reason of the publication complained of, he was damaged in reputation . and lost the confidence and esteem' of the members of such organization. The alleged libel describes the Fagan of whom it was written as a “nonunion telegraph operator” in the employ of the Western Union Telegraph Company. The plaintiff avers that he had not been in the employ of that company for nine years, either in New York City or elsewhere. Upon these allegations the members of the union to which plaintiff belonged were not justified in the belief that the article referred to the plaintiff, who they knew to be a union man, not in the employ of the Western Union Telegraph Company, as was the Fagan to which the article referred. It therefore appears upon the face of the complaint that the libel was not published of and concerning the plaintiff, and the case is brought within the rule declared in Corr v. Sun Printing & Publishing Ass’n, 177 N. Y. 131, 69 N. E. 888.

The interlocutory judgment must be reversed, with costs, and the demurrer sustained, with costs, with the usual leave to the plaintiff to plead over on payment of costs.

JENKS and HOOKER, JJ., concur. WOODWARD and GAYNOR, JJ., concur on the sole ground that the publication is not libelous.  