
    Frank L. Perley, Respondent, v. Morning Telegraph Company, Appellant.
    First Department,
    April 8, 1909.
    Libel — pleading — injury to business—publication not libelous per se — allegation of special damage.
    Statements are actionable when they have such a relation to the occupation of a plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability and from the nature of the business great confidence must necessarily be reposed in him.
    
      A publication, which states that a certain theatrical manager had decided not to send his company over a booking firm’s circuit; that a contract was signed with forfeiture for violations; that the tours were brought to an end and the manager sued to recover the forfeit; that the booking firm claimed that the plaintiffs shows had been closed because they were not successful, and through no fault of theirs, and that the court decided in favor of the booking firm and ordered the plaintiff to pay costs, is not libelous per se.
    
    Such publication merely charges that plaintiff’s shows had been closed because they were not successful and there is nothing that directly tends to injure the manager in respect to his business.
    An allegation that such false statement seriously interfered with the various enterprises which plaintiff had and was about negotiating prior to the publication of the article and that plaintiff was damaged in the sum of $50,000/ is not a sufficient statement of special damage.
    Appeal by the defendant, the Morning Telegraph Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.
    
      Thomas W. Churchill, for the appellant.
    
      Franklin Bien, for the respondent.
   Ingraham, J.:

The action is for a libel, the defendant being the publisher of a daily newspaper known as the Morning Telegraph. The complaint alleges that the plaintiff is a theatrical manager and that the defendant caused to be published on December 14, 1907, an article which is set forth in the complaint. It was stated in that article that an action commenced by plaintiff against the Shubert Company had been decided against the plaintiff; that the plaintiff had decided to send his companies over Shubert’s circuit; that a contract was signed under which each side was to forfeit $25,000 for a violation of its terms; that on the plaintiff’s side he was restrained from hooking any company with Klaw & Erlanger; and, on the other hand, the Messrs. Shubert were to supply routes for the plaintiff’s companies; that the tours were brought to an end and the plaintiff filed suit for $25,000, asserting that he was not provided with time; that the Shuberts claimed that the plaintiff’s shows had been .closed by the proprietor because they were not successful, and through no fault of theirs, and that the court trying the case affirmed the decision of the Appellate Division in the defendant’s favor and the plaintiff was ordered to pay the costs of the litigation. It is then stated in the complaint that the statements contained in said article "were absolutely false, malicious and untrue, in that it was stated in substance that there had been proof upon the trial of said action on December 13, 1907, that Shubert had failed to carry out the contract, because the plaintiff had closed his productions by reason of the fact that they were not successful and through no fault of the Shuberts; that the question of the plaintiff closing his productions was not gone into on the said trial. The complaint further alleges that the publication of these false, malicious, defamatory and libelous statements had seriously interfered to a great extent with the various enterprises which the jilaintiff had and was about negotiating prior to the publication of the aforesaid false, malicious, defamatory and libelous statements contained in said article, and that the plaintiff has been damaged in the sum of $50,000.

It is quite clear that this allegation is not a sufficient statement of special damage, and the right of the plaintiff to maintain the action must, therefore, depend upon whether this publication is libelous per se. It was privileged if it was a fair and truthful statement of a judicial proceeding, but the complaint alleges that it was not in that the Shuberts had never made the claim that the plaintiff’s shows had been closed because they were hot successful. The only statement in this publication which can be claimed to be libelous per se is that the booking firm (the Shuberts) claimed that the Perley shows had been closed by the proprietor because they were not successful, and through no fault of theirs.

■ The rule in relation to a publication affecting the plaintiff’s busi: ness or profession is stated in Sanderson v. Caldwell (45 N. Y. 398), as follows : When the words spoken have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are. actionable, although not applied by the speaker to the profession or occupation of the plaintiff.” In Moore v. Francis (121 N. Y. 199) the publication stated that the teller of the bank was mentally deranged. The court-referred to the definition of actionable slander by Chief Justice DeGrey in Onslow v. Horne (3 Wils. 177) that slanderous words are those “ which tend to injure a party in his trade, occupation or business,” and in speaking of this class of action he said: The law allows this form of action -not only to protect a man’s character as such, but to protect him in his occupation also against injurious imputations. It recognizes the right of a man to live, and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages,” and quotes with approval what was said in Whittaker v. Bradley (7 D. & R. 649)-: “ Whatever words have a tendency to hurt, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable; -” that the same rule applies to an action to recover for a written or printed publication, and that written words are libelous in all cases where'if spoken they would be actionable.

The utmost that can be said about the defendant’s publication is that it is an allegation that the plaintiff’s shows liad been closed by him because they were not successful. There was nothing in this statement that directly tended to injure the plaintiff in respect to his business or which impaired confidence in his character or ability. The fact that a business enterprise of any character has not been successful does not directly tend to injure the party conducting the enterprise. There is nothing but lack of success charged. It is not even charged that the lack of success was the fault of the plaintiff’s management or judgment. There is nothing charged against the plaintiff in relation to his profession or occupation ; nothing to indicate that the lack of success was -because of any fault of the plaintiff, or that his conduct of the shows liad caused their lack of success. A mere statement, of the publication shows that there was no charge made against the plaintiff in connection with his profession or occupation that would directly tend to injure the plaintiff or to impair confidence in his character or ability.

It follows that the publication was not libelous per se and the action can only be maintained if the publication had caused special damage.

The judgment appealed from must, therefore, be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend within twenty days upon payment of costs in this court and in the court below.

Patterson, P. J., Clarke, Houghton and Scott, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  