
    William W. Ryan, Resp’t, v. The Burger & Hower Brewing Co., Limited, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    Slander—What words are actionable.
    The defendant falsely stated, published and declared that it had a claim or mortgage against plaintiff’s place of business, and that if any brewer belonging to an association of brewers sold beer to plaintiff, the defendant, under an agreement of said association, would hold that person and the associates liable for said claim. Thereupon the associates discontinued the sale of beer to plaintiff, by which he was greatly damaged. Held, that the words tended to injure the plaintiff in his business and constituted an actionable slander.
    Appeal from a judgment on a verdict and from an order denying a motion for a new trial.
    
      Ashbel P. Fitch, for app’lt; H. M. Gescheidt, for resp’t.
   Brady, J.

The plaintiff went into business in Brooklyn and spent large sums of money in fitting up the premises hired by him for the purpose of successfully carrying it on. His business involving the necessity of selling it at retail, he purchased lager beer from Jacob Ruppert, a brewer of this city, which with other commodities made up his stock in trade. His business not only was successful but so continued until the. defendants, and as it is ■alleged with the intent and purpose to injure his credit, reputation, business and standing, uttered concerning him and his business false and defamatory matter the allegation of which is as ■follows:

IY. The plaintiff alleges, on information and belief, that on or about the 15th day of December, 1888, and from said time down to the 5th day of March, 1889, continually in the city of New York and in the city of Brooklyn, state of New York, the defendant by and through its officers, agents and servants, on behalf and by authority of the defendant, maliciously and falsely stated, caused to be stated, published and declared in the English language to the said Jacob Ruppert, his attorney, agents, and servants, Maurice Ahern, Mr. McLaughlin, Brewers’ Union or Association, Brewers’ Exchange of N. Y., Brewers’ Pool Association (commonly so called), or the Lager Beer Brewers’ Board of Trade, of N. Y. and vicinity, to any or all of the members of any or all of said associations, of either of which defendant is a member, and to other persons who are unknown at present to the plaintiff, with intent and purpose to injure the credit, reputation, business and standing of the plaintiff aforesaid, all of which persons heard and understood the English language concerning plaintiff and his business aforesaid, the false and defamatory matter following, to wit: That said corporation (the defendant herein) has a claim, mortgage and demand against the place and business aforesaid, and that if the said Jacob Ruppert, or any other brewer or brewery that belongs, with the defendant, to an association for the mutual interest and benefit of the brewers and breweries that belong thereto, would continue to deliver beer or sell beer to the place of business of the plaintiff aforesaid, the defendant, under an agreement, stipulation, statement or understanding, with the members of said association, would hold said Ruppert and other members thereof liable to pay the alleged claim against said place aforesaid, with damages for the continuation of the delivery and sale of beer to said place.

Y. That at the times aforesaid when said false and defamatory statement was made concerning plaintiff’s place and business aforesaid, the same was false, defamatory and untrue, and known by the defendant to be so; that the plaintiff was perfectly solvent, had credit, no claim whatsoever being against said place; that said Jacob Ruppert, from the false and defamatory statement and publication as aforesaid, was induced to discontinue, and did discontinue, under threat of penalty, according to an agreement with the defendant and others aforesaid, to deliver and sell beer to said place, and other brewers and breweries that belonged to the association with said Ruppert and defendant and others aforesaid refused, under threat of penalty according to an agreement with the defendant and others aforesaid, to sell and deliver beer to said place on account of the false and defamatory statement and publication made by the defendant aforesaid, and Julius Wollman and other merchants refused to give this plaintiff credit for merchandise on account of said false and defamatory statement and publication as aforesaid, and through said false and defamatory statement and publication the plaintiff lost customers, whose names are unknown at present to him, and his business fell off from the average of twenty-five to thirty dollars per day to the average of two to five dollars per day, thereby causing plaintiff to lose the income thereof of the average of about ten dollars per day, and causing him to become insolvent, to lose his credit, in arrear of rent, the forfeiture of deposit of rent under said lease, and failure in said business, loss of said profits and enjoyment thereof, whereby the plaintiff was compelled to give up and discontinue said business and the plaintiff became injured and damaged thereby in the sum of $20,000.

The statements complained of were false and defamatory and the result was that the plaintiff was unable to get beer from the brewers from whom he wished to buy, his business ruined and he-compelled to sell his place.

» The defendants had a claim against his predecessor secured by a personal mortgage upon the articles which were in his saloon or restaurant, and of which they took possession and which they had removed prior to the demise to the plaintiff. The place was not theirs and they had no claim upon it, but asserted the existence of one by virtue of articles of association between certain brewers and themselves who, had banded together ostensibly for mutual protection and by the rules or regulations of which, it seems, they could ostracise or stigmatise not only the debtor but-the “ place ” he formerly occupied, although they had, as suggested no claim upon it, and thus in effect prevent its occupancy for the sale of beer, unless the debt due from the former debtor was paid. It was in effect a fictitious mortgage on the place thus created by the despotic act of this association affecting and checking the enterprise of the tenant on the premises and paralyzing the efforts of the owner to let his tenement for any business connected with the sale of lager beer until the fictitious mortgage should be paid and discharged. This if not a novel, is certainly an unlawful proceeding, having the double effect of injuring a business and slandering the owner’s title to the tenement in which it was carried on, against neither of which could there be in a case kindred to this the slighest propriety of saying anything detrimental. Such a combination for such a purpose is in the highest degree despotic and subversive of the principles of our government.

There is no recognition of the old adage of live and let live ; indeed, its converse is adopted and enforced.

The proof is abundant that the defamatory matter was employed by the defendants to the injury of the plaintiff. The whole subject was presented to the jury in an elaborate charge upon all the evidence to which no exception was taken by the defendants and in relation to which no requests were made to charge. The defence it may be said was meagre, the struggle having been apparently more to lessen the damages than to justify the conduct complained of. The salient points of such a controI versv as this have recently been the subject of review developing the principles governing the plaintiff’s case. In Moore v. Francis, 121 N. Y., 199; 30 N. Y. State Rep., 467, Justice Andrews said in the course of his opinion : “ The cases of actionable slander were defined by Chief Justice De Grey in the leading case of Onslow v. Horne, 3 Wilson, 177, and the classification there made [has been generally followed in England and this country.” The | third class mentioned in that case embraces words which tend to in[jure a party in his trade, occupation or business. “The law allows I this form of action, he said, not only to protect a man’s character Ibut to protect him in his occupation, although no fraud or dishonlesty is charged and although the words were spoken without actual Imalice.” ■ “It recognizes, he also said, the right of a man to live land the necessity of labor, and again, that the principle is elearlv Istated by Bayley, J., in Whittaker v. Bradley, 7 D. & R., 649, thus : ‘ Whatever words have a tendency to hurt or are calculated to prejudice a man who seeks a livelihood by any trade or business are actionable.’ ” And the doctrine is declared that when proved to have been spoken in relation thereto the action is supported, and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because the falsity of the words and resulting damage are presumed.

The damages were assessed by the jury at $1,523, for which they gave their verdict This sum was not excessive. The plaintiff gave a detailed statement of his expenditures in and about the place amounting to $1,324.64, and it appears that he was compelled to sell the fixtures for $100 against $1700, for which he might have sold the place and its surroundings had it not been for the ruinous consequences of the defendants’ false assertion that they had a claim on the place, to which reference has already been fully made. In addition to this the jury had a right to consider the pecuniary loss sustained by the plaintiff in consequence of the breaking up of his business.

There appears no reason to withhold an affirmance of the judgment appealed from and it should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur. -  