
    Costantino Maglio, Respondent, v. The New York Herald Company, Appellant.
    
      label — where it refers to a hotel and not to the proprietor a complaint must allege special damages.
    
    A newspaper article stating that a hotel was frequented by vicious characters; that it had a bad reputation; that an unsuccessful attempt had been made to close it, and that the physician who performed an autopsy on a murdered woman believed that the murderer would be found in such hotel, refers to the hotel and not to the hotel proprietor.
    Consequently, the complaint in an action of libel brought against the publisher of such article by the hotel proprietor does not state facts sufficient to constitute a cause of action unless it alleges special damage.
    Appeal by the defendant, The New York Herald 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 Westchester on the 9th day of October, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.
    The action was brought by the plaintiff, for many years the proprietor. of a hotel at White Plains, Westchester county, N, Y., known as the Roma Hotel, to recover damages alleged to have been sustained by reason of the publication of two alleged libels, one in the New York Herald, and one in the Evening Telegram, two newspapers published by the defendant. One of the alleged libels, which was published in the New York Herald on. January 24,1902, was as follows: ,
    “ Woman found by the roadside, foully slain, met the fate THAT WAS INTENDED FOR HER DAUGHTER.
    “ When the family fortune fell lower than usual a few months ago the daughter, Isabella, took service as a nurse girl in a family living about four blocks from her home.. She was often on the street as late as six o’clock in the evening and at such times attracted the attention of passers by, though it is said that she is of a modest and retiring nature. Further down Lake street is the Roma Hotel, kept by Costantino Maglio. (The plaintiff meaning.) Many Italians make the hotel their headquarters and it has a bad reputation. An attempt was recently made to have it closed, but the attempt failed. From this hotel, a tall Italian, whose name is not known, on more than one occasion followed Miss Allen. He attempted t® speak to her and was repulsed. Once he sprang out at her from the side of the street just before she entered her home. Her screams brought her father to her assistance and the Italian disappeared. To-day Miss Allen accompanied a reporter for the Herald to the Roma Hotel, she was unable to identify her assailant. * * * Suspicion points with emphasis in the direction of an Italian. Not far from where Mrs. Allen’s body was found is a. hotel (meaning the Roma Hotel, kept by the plaintiff as aforesaid), patronized by Italians, and it is the opinion of Dr. Curtiss that the murderer will be found there. There is good reason to believe that a mistake was made when the crime was committed, and that Mrs. Allen’s daughter, Isabella, was intended as the victim. The girl, who is in a state of hysterical fear as a result of the terrible tragedy that has come into her life, is of the opinion' that she escaped death by the merest accident, and that her mother was sacrificed in her stead. Less than a month ago Miss Allen was followed to the door of her home by an Italian who attempted to intercept her.”
    The other alleged libel was published in the Evening Telegram on January 24, 1902, and was as follows:
    
      “Retbeat fob the vicious (meaning thereby that the Roma Hotel, of which the plaintiff was keeper, as aforesaid, secreted and harbored and was the home of vicious persons and- criminals.) Husband of slain woman fbeed.
    
      “ Police now seek other clews. Mrs. Allen found murdered by roadside in White Plains, N. Y., is believed to have met fate intended for her daughter, who had twice been threatened by Italian who cannot be found. Isabella (meaning the daughter of the said ' Mrs. Allen) is employed as a nurse girl in the family living about four blocks from her home. She was often on the street as late as six o’clock in the evening, and at such times attracted the attention of passers by, though it is said that she is of a modest and retiring nature. Further down Lake street is the Roma Hotel, kept by Costantino Maglio (the plaintiff meaning). Many Italians make the hotel .their headquarters, and it has a bad reputation. An attempt was recently made to have it closed, but the attempt failed. From this hotel a tall Italian, whose name is not known, on more than one occasion followed Miss Allen; he attempted to speak to her and was repulsed. Once he sprang out at her from the side of the street just before she entered her home. Her screams brought her father to her assistance and the Italian disappeared. When taken to the Roma Hotel yesterday, however, Miss Allen was unable to identify her assailant. * * *
    “ White Plains, N, Y., Friday. Strenuous efforts on the part of the police to discover the murderer of Isabella Allen, whose body was found under such shocking and peculiar circumstances Thursday night, have so far been unavailing. James Allen, her husband, who was arrested on suspicion, has been released, and the police are now trying to find the man who notified Mr. Allen of the discovery of his wife’s body, went with him to the police station to report the matter and then mysteriously disappeared. Suspicion points with emphasis in the direction of an Italian. Not far from where Mrs. Allen’s body was found is a hotel patronized by Italians (meaning the Roma Hotel kept by plaintiff as aforesaid), and it is the opinion of Dr. Curtiss, who performed the autopsy, that the murderer will be found there. There are good reasons for believing that a mistake was made when the crime was committed, and that Mrs. Allen’s daughter Isabella was. intended as the victim. The girl, who is in a state of hysterical fear as a result of the terrible tragedy that has come into her life, is of the opinion that she escaped death by the merest accident and that her mother was sacrificed in her stead.”
    
      Robert W. Candler [ William Jay and Flamen B. Candler with him on the brief], for the appellant.
    
      Charles A. Dryer, for the respondent.
   Per Curiam :

The alleged libels for the publication of which this action is brought do not differ materially from those which were under consideration in Maglio v. New York Herald Co. (83 App. Div. 44). It seems to us that they refer to the property of the plaintiff and not to the plaintiff individually. Here, however, there is no allegation of special damage, and without such an allegation, where the defamatory publication is a libel on the place, and not bn the plaintiff, the complaint does not state facts sufficient to constitute a cause of action. (Kennedy v. Press Publishing Co., 41 Hun, 422.)

It follows that the interlocutory judgment should be reversed.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs.  