
    THE KNICKERBOCKER LIFE INSURANCE COMPANY against ECCLESINE.
    
      New York Superior Court;
    
    
      General Term, December, 1871.
    Arrest.—Libel.—Complaint.
    Upon proof of special damages, a corporation may sustain an action for libel.
    The complaint, in an action for libel upon a corporation, must set forth special damages, if the matter is not libelous per se, and may, on motion, be required to be made more definite and certain by particularizing the times and places of incurring such damage.
    The provisions of the Code of Procedure, authorizing arrests in civil actions, do not give the plaintiff a right to arrest the defendant, but it rests in the sound discretion of the judge to grant or refuse an order.
    The exercise of this discretion in granting the order, by the judge to whom application for an order of arrest is made, may be reviewed by another judge at special term, upon a motion to vacate the order.
    A defendant arrested, does not, by giving bail, preclude himself from questioning the sufficiency of the plaintiff’s complaint, or original affidavits made to obtain the order.
    Appeal from order vacating order of arrest; and,
    Appeal from order directing the complaint to be made more definite and certain.
    This was an action brought by the plaintiffs against Joseph B. Bcclesine, to recover one hundred and thirty thousand dollars, alleged damages asserted to have been sustained by reason of divers alleged libelous publications, whereby persons were induced to refuse to make applications for insurance, &c., of and concerning the plaintiffs, contained in a chart of life insuranee companies, annually published by the defendant, and in which is embodied a brief synopsis of the annual returns of such companies organized or doing business in the State of Hew York, for the year ending December 31, 1867, and also in three advertisements contained in different public journals published in this city inserted by the defendant with the view of calling the attention of the public to his said chart for the purposes of sale, in which advertisements were embodied the essential points affecting the plaintiff’s company and claimed by them as libelous in the chart.
    Upon a complaint embracing five causes of action, an affidavit of the president of plaintiff’s company alleging the falsity of some of the facts stated in defendant’s publications, and an affidavit of plaintiff’s counsel referring to and annexing copies of correspondence had between him and the defendant prior to the suit, and also annexing the alleged libelous matter, an order of arrest was obtained from one of the judges of this court directing the sheriff to arrest the defendant and hold him to bail in ten thousand doEars.
    The defendant moved upon affidavits to vacate the said order of arrest, and the motion was opposed by further affidavits.
    The motion was granted, and the order vacated. Reported in 6 Abb. Pr. N. S., 9, where the facts wiE more fully appear.
    An order to that effect was entered, and from that plaintiff appealed.
    Defendant subsequently moved to have the averment of damage, at the end of each count, made more definite and certain. The motion was granted, and an order made, directing the complaint to be made more definite and certain, by setting out the names of the persons refusing to make application for insurance, and the particular premiums and amounts thereof, which it was claimed the company would have received, had it not been for the publication of the alleged false matter.
    From this order also the defendant appealed.
    
      H. W. Johnson and A. J. Vanderpoel, John K. Porter and Thomas Darlington, for the appellant.
    
      Alexander & Green, D. McMahon and H. A. Cram, for the respondent.
   By the Court.—Monell, J.

I think both orders should be affirmed; the order discharging the arrest for the very satisfactory reasons stated by the learned justice at special term, and the other for the reason that if the averment of special damage is made definite in the particulars specified in the order, there will be a prima facie cause of action against the defendant. We all agree, that without proof of special damage the action cannot be maintained: in other words, we agree that with proof of special damage it may be maintained. As an allegation in a pleading, I think it would be sufficient, if it contained the matter required by the order, and that, it seems to me, is the only question before us on this appeal. The matter alleged against the defendant is not per se libelous ; but if the plaintiffs can satisfy a jury that such matter is injurious to them and was maliciously published, they can recover if they also show that they have been specially damaged.

Ereedmak, J., concurred.

Jones, J. [concurring as to the first and dissenting as to the other order].

If this action is sustainable at all, it must be on the ground that special damage has resulted from the writing of the words. Special damage then is the gist of the action. Being so, it must be laid in the complaint with particularity. A general averment of loss of customers will not suffice. The names of the customers who are alleged to have been lost must be given, and only the loss of the customers •so named can be proved. If no customers are named, then no proof of special damage can be given, and the action fails (1 Stark. on Slander, 441; 2 Id., 62; 1 (Chitty on Pl., 399 ; 2 Saund. on Pl. & Ev., 800). This doctrine appears to have been overlooked in the case of Shoe and Leather Bank v. Thompson, 18 Abb. Pr., 413, 417.

In the present case there is no sufficient averment of special damage, either in the complaint or any of the papers used in support of the order of arrest. There is, therefore, nothing to carry the case to a jury. The case then fads within that class of cases where the court wid not uphold an order of arrest.

Again: the words complained of do not of themselves import any injury to the plaintiff, nor do they afford any presumption, legal or otherwise, that their circulation is injurious. For aught that appears by the adegations of the complaint, the plaintiff’s mode of business, as stated by the defendant, was more beneficial to both stockholders and policy-holders than that of any other company. Therefore it does not appear that the words could or did injuriously affect the plaintiff’s business by deterring customers.

Consequently an adegation that there were other companies who did business on a more favorable basis, is material.

The.averment of special damage does not supply the want of such adegation, because the facts alleged do not show such damages to be the direct and legitimate result from the words used.

If, however, the special averment does supply the want of such adegation, it is then clear that the special damages constitute the gist of the action.

For these reasons I think the order vacating the order of arrest should be affirmed "with ten dollars costs.

With regard to the motion to make the complaint • more definite and certain, the above views call for a reversal.

That motion is applicable only when one or more of the allegations which go to make out the cause of action is or are indefinite or uncertain. But it cannot be resorted to, to compel the insertion of an averment which is necessary to make out the cause of action, or which changes the cause of action which the plaintiff insists on, or the grounds thereof on which he chooses to rely.

Now in this case there is no averment of special damage, and none can be proved (Herrick v. Lapham, 10 Johns., 281).

If the plaintiff succeeds under his present complaint it must be on the ground that the words are actionable ver se. True, I think, he cannot succeed on that ground. But he has a right to differ from me and place his cause of action on that ground alone, and we cannot compel him to add another ground, nor to claim special damages, if he does not desire to.

The order to make complaint more definite and certain should be reversed with ten dollars costs.

Both orders affirmed with costs. 
      
       Present, Monell, Jones and Freedman, JJ.
     