
    Christopher Rembt, Appellant, v. The Roehr Publishing Company, Respondent.
    
      Libel—special da/mages must be pleaded — a refusal by particular persons to gire credit constitutes special damage — application of rules as to the sufficiency of objections, where a new trial is granted thereon in the court below.
    
    In an action of libel, based upon a publication which is libelous per se, evidence of special damage may be given in enhancement of damages, provided the special damage is pleaded, but not otherwise.
    Where the complaint in such an action alleges that, “ by means of the said publication plaintiff was injured in his reputation, business and credit in the sum of ten thousand ($10,000) dollars,” and no special damages are pleaded, the plaintiff is not entitled to show that particular persons, firms and corporations had denied the plaintiff credit.
    The rules relating to the sufficiency of exceptions to evidence taken upon a trial which are enforced by appellate tribunals in support of the judgment rendered by the trial court, do not apply where the trial court grants a new trial upon the ground that it improperly admitted certain evidence.
    Appeal by the plaintiff, Christopher Rembt, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 29th day of May, 1901, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial.
    
      J. Aspinwall Hodge, Jr., for the appellant.
    
      John T. McGovern and Edward H. M. Roehr, for the respondent.
   Woodward, J.:

This is an .action for damages, alleged to have been sustained by the plaintiff through the publication of a libel in the newspaper of the defendant. The trial took place before a justice of the Supreme Court and a jury on the 13th day of May, 1901, resulting in a verdict for the plaintiff for $1,000. The learned court granted defendant’s motion for a new trial, under the provisions of section 999 of the Code of Civil Procedure, and from the order entered appeal comes to this court.

It does not appear upon which one of the various grounds urged by the defendant the order was granted, but the appellant seems to assume that it was upon the exceptions, taken to the admission of certain evidence, and as these appear to us sufficient to sustain the action of the learned trial court, it will not be necessary to carry the inquiry further.

The complaint sets forth the article, which appears to be libelous fer se, and alleges that “ by means of the said publication plaintiff was injured in his reputation, business and credit in the sum of ten thousand ($10,000) dollars.” No special damages are pleaded, and upon the trial the plaintiff insisted upon proving, not only the general falling off in his business after the publication of the article, but the conduct of persons, firms and corporations with whom he had done business in respect to giving him credit. “ Special damages,” says Chitty (1 Chitty Plead. [4th Am. ed.] *387), “ are such as. really took place, and are not implied by law, and. are either superadded to general damages arising from an act injurious in itself,, as where some particular loss arises from the uttering of slanderous words actionable in themselves, or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as where words become actionable only by reason of special damage ensuing.” The rule is well settled that in actions where the words, statements or defamatory matter are actionable perse, evidence of special damage may be given in enhancement of damages, provided the special damage is pleaded, but not otherwise. (Loftus & Co. v. Bennett, 68 App. Div. 128; 74 N. Y. Supp. 290.) There can be no doubt that evidence that particular persons, firms and corporations had denied the plaintiff credit was evidence of special damage, and it had no place in this case under the pleadings. The defendant, by objection and exception, attempted to keep this evidence from the jury, but wa.s overruled by the learned'trial court. The appellant now urges that the exceptions do not bring up the questions raised, because they were too general, or were otherwise imperfect,but the force of these-suggestions is lost because they are not here for review. The learned trial court, by granting the motion for a new trial, has reversed the rulings upon these questions, and has, in effect, conceded that the evidence was improperly admitted. Rules which are enforced in support of a judgment, because the court will not review a question which is not raised in the court below with sufficient distinctness so that the trial court might have disposed of it properly, have no force where the trial court has itself reversed its ruling, and if any of the evidence was improper, we are bound to assume that the court below has acted within its discretion, and for the purpose of promoting justice. But the questions were fairly presented to the court by the objections and exceptions of the defendent; there was no misapprehension of the matter, no misunderstanding of the point which the defendant repeatedly urged, that the plaintiff was not entitled to prove special damages under his pleadings. As there can be no doubt that the defendant was right upon this point, and that the error of the trial court has been cured by the order granting a new trial, there is no reason why the order should not be affirmed.

The order appealed from- should be affirmed, with costs.

All concurred.

Order affirmed, with costs.  