American Multiple Fabric Co. v. Eureka Fire Hose Co. — 18 Abb. N. Cas. 70

Majority

p. 70

AMERICAN MULTIPLE FABRIC CO. v. EUREKA FIRE HOSE CO.

N. Y. Supreme Court, First District, Special Term, at Chambers;

December, 1886.

Headnote

1. Bill of particulars in action for libel; loss of profits.] In an action for libel where the complaint contains averments that plaintiff has lost many sales and profits which it would have made in its business but for the alleged libel, the court may order a bill of particulars showing specifically all such sales and profits, with the names and places of business of those whose custom has been lost, and the dates and amounts of any transactions the benefit of which plaintiff has lost through the alleged libel. ->

2. — Injury to reputation in busmess.1 But a bill of particulars as to the injury to plaintiff’s good name and reputation in its business and credit will not be ordered.

Motion by defendant for a bill of particulars.

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The action was for libel contained in a circular published by defendant at divers times and places throughout the several States and Canada during the years 1882, 1883, 1884 and 1885, by reason of which, plaintiff averred, that it had been greatly injured, and had lost many sales and profits which would otherwise have been made in its business. Defendant moved for an order requiring plaintiff to serve a bill of particulars showing specifically all of the injuries which plaintiff has suffered as to its good name and reputation, business and credits, and what sales and profits it has lost by reason of the-alleged libel, and the times when, and places where such losses and injuries were sustained, together with the names and places of business of the persons whose custom has been lost, and the dates and amounts of any transactions or sales or orders so lost.

The affidavit in opposition was made by defendant’s •attorney.

William B. Hornblower (Charles H. Woodruff, attorney), for the motion.

M. L. Townsend, in opposition.

The plaintiff need not give the particulars of the injury to its good name and reputation and in its business and credit. These averments, as was said in Lane v. Williams ( 37 Hun, 388 ), may be sustained by proof of the malicious act without proof of specific instances. But the averment that the plaintiff has lost many sales and profits which it would have made in its business, but for the defendant’s acts—to wit, $5,000 or thereabouts— stands upon a different footing. That is an averment of special damage, which the plaintiff need not have made, but having chosen to make it, must particularize. The affidavit of the attorney that the plaintiff cannot give the particulars because the agent has them is of no force. The plaintiff acts through agents and can control them;

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besides, the plaintiff’s officers should have told us that they could not control the agents and why not the attorney ?' The motion, in the particular mentioned, must be granted,, with costs to abide the event.

The order, entered directed service of a “ verified bill of particulars- " showing specifically all of the sales and profits that plaintiff has lost by '* reason of defendant’s alleged libels, as claimed and alleged in plaintiff’s “ complaint herein, giving the names of the persons whose custom has been "lostand their places of business respectively, and the times when and ‘ ‘ places where such losses have occurred, as well as the dates and amounts. " of any transactions or sales or orders which the plaintiff lost the benefit "of by reason of the defendant’s alleged libels and of the plaintiff’s losses- " thereon specifically.”