E. Frederics, Inc. v. Nessler — 187 A.D. 592

Majority

p. 592

E. Frederics, Inc., Respondent, v. Charles Nessler, Appellant.

First Department,

May 5, 1919.

Headnote

See head note in Frederics v. Nessler (ante, p. 590).

Appeal by the defendant, Charles Nessler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1918, overruling his demurrer to the complaint.

Henry O. Wenzel, Jr., for the appellant.

Charles H. Wilson of counsel [William L. Morris with him on the brief], for the respondent.

Assuming that the libels set forth may fairly be assumed to refer to the plaintiff corporation, this complaint is open to the objection that it fails to set forth that the plaintiff was engaged in the hairdressing business at the time of the publication of the alleged libels in question. Furthermore, an examination of the decision of the Federal court made a part of the complaint negatives the innuendo alleged in the complaint, as well as the allegation that the matter published was untrue. There is nothing defamatory in these

p. 593

articles concerning the plaintiff corporation, and as to it they are not libelous per se, nor is there any charge of special damage to the corporation as such.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to plaintiff to serve an amended complaint upon payment of such costs.

Clarke, P. J., Smith, Page and Shearn, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to serve an amended complaint on payment of said costs.