Sydney v. Macfadden Newspaper Publishing Corp.

Majority

p. 653

Doris Keane Sydney, Appellant, v. Macfadden Newspaper Publishing Corporation, Respondent.

Headnote

Libel and slander ■— damages — where extrinsic facts are necessary to show statement to be libelous special damages must be alleged.

Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on April 3, 1925, dismissing the plaintiff’s complaint on the ground that it does not state facts sufficient to constitute a cause of action, and also from the judgment entered on April 10, 1925, in pursuance of said order.

We conclude that the article complained of is not libelous per se, and that it requires the extrinsic facts which are alleged in the complaint to make it so. In these circumstances the article is not actionable unless special damage be alleged. The judgment and order appealed from should, therefore, be affirmed, with costs, with leave to plaintiff to serve an amended complaint within twenty days upon payment of said costs. Present — Clarke, P. J., Dowling, Merrell, McAvoy and Martin, JJ.; Clarke, P. J., and Martin, J., dissent. Judgment and order affirmed, with costs, with leave to the plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.