Majority
p. 346JACOBS v. WATER OVERFLOW PREVENTIVE CO. (Supreme Court, General Term, First Department. October 13, 1893.) The complaint is as follows:
Headnote
Pleading—Bill op Particulars—Special Damages.A complaint for libel alleged as special damages that by reason of the-publication “many persons, firms, and corporations were intimidated, and canceled contracts already made with him, said plaintiff, and declined and refused to enter into contracts with him,” whereby he was damaged. Meld, that defendant was entitled to a bill of particulars stating the names and addresses of the persons, firms, and corporations who were » intimidated, and who canceled contracts with plaintiff, by reason of the publication. Peabody v. Cortada, (Sup.) 18 N. Y. Supp. 622 , followed.
Appeal from special term, New York county.
Action by Maurice Jacobs against the Water Overflow Preventive Company to recover damages in the sum of |30,000 for an alleged libelous publication issued and circulated by the defendant. From an order denying a motion to compel plaintiff to furnish a bill of particulars of the claims set forth in his complaint, defendant appeals.
Reversed.
The complaint of the plaintiff shows to the court, for a first cause of action: (1) That the defendant is a domestic corporation organized under the laws of the state of New York. (2) That the plaintiff, on or about the 24th day of March, 1891, obtained a patent for a certain water lock for the protection of damage to merchants and others from water, and from on or about April —. 1892, plaintiff was engaged in offering his said patent or invention on lease or sale to merchants and others having use for the same in this and other cities of the United States. (3) That on or about the 10th day of May, 1893, the said defendant, the Water Overflow Preventive Company, issued to numerous persons, firms, and corporations in this and other cities a typewritten circular, a copy of which is hereto annexed, marked “A,” and made a part of this complaint, whereby the good name and credit of this plaintiff was seriously injured, and he was held up to public hatred, ridicule, and contempt, and his reputation as a citizen and a man and in his business was damaged and injured, to his great loss and damage. (4) That each and every of the statements made in said circular against this plaintiff were and are false and untrue, and were made with malice against him, intending thereby to injure his reputation as a citizen and a man, and to destroy him in his business, and did so injure him to his damage twenty thousand dollars.
For a second cause of action: (1) Plaintiff restates and reiterates the allegations contained in paragraphs 1 and 2 of the first cause of action as hereinbefore stated. (2) That on or about the 10th day of May, 1893, the defendant issued, as hereinbefore stated, the typewritten circular annexed and marked “A,” and sent same to numerous persons, firms, and corporations in this and other cities with whom plaintiff had business, or was soliciting to introduce his said patent, thereby intending to destroy plaintiff’s business, and to prevent him from securing the introduction of his said patent or invention, and the sale or lease thereof to said persons, firms, and corporations; and in said circular threatened them with legal proceedings against them in case they should use his said patent or invention. (3) That each and every allegation made in said circular against plaintiff were and are false, and were made with malice, to injure said plaintiff, and to intimidate his customers and others whom he might be soliciting.' (4) That by reason of the sending of said circulars many persons, firms, and corporations were intimidated, and canceled contracts already made with him, said
p. 347The following is the circular referred to in the complaint: Office of the Water Overflow Preventive Co., No. 93 Grand Street New York, May 10, 1893. To Our Customers: Having commenced suits in the United States circuit court against parties calling themselves respectively the Protection Lock Company of New York and the Water Security Company of New York, both direct and palpable infringements of our patents, we ask the kind consideration of our customers to the following facts: Our lock, by our system of constant inspection, is always kept in perfect working order. Our company is duly incorporated under the laws of New York, is financially responsible, and prepared to do all in its power to satisfy and hold our customers. We would respectfully warn our customers to beware of a certain Maurice Jacobs, formerly in our employ, who, under the' name of the Water Security Company of New York, is now attempting to sell a cheap imitation, and a direct and palpable infringement of three (3) of our patents. In self-protectian we will, of course, be put under the necessity of commencing legal proceedings against anybody using this imitation. We have cautioned the general public already, but think it our duty to send you this special notice, as we would not like to cause our customers any unnecessary trouble or expense. We respectfully ask our customers to send to our office, when our manager will call on you and explain in a few words the animus of Mr. Jacobs’ action. Respectfully yours, The Water Overflow Preventive Co. Defendant demanded a hill of particulars as follows: (1) On what date plaintiff began to offer his alleged patent or Invention to merchants and others, as specified in paragraph 2 of the first cause of action set forth in the complaint, and also a statement of the specific places in which plaintiff did so offer same on lease or sale. (2) A statement setting forth specifically and in detail the names of the persons, firms, and corporations to whom plaintiff claims that defendant issued the circular referred to in paragraph 3 of the first cause of action set forth in the complaint. (3) A detailed statement giving the items, character, and specific amounts of the loss and damage to plaintiff’s business by reason of the alleged issuing by the defendant of the circular referred to in paragraphs 3 and 4 of the first cause of action set forth in the complaint. (4) A specific and detailed statement of the names of the persons, firms, and corporations with whom plaintiff had business, and whom plaintiff was soliciting to introduce his said patent, to whom defendant issued the circular referred to in paragraph 2 of the plaintiff’s second cause of action. (G) A specific statement setting forth in detail and by items the character and amount of the pecuniary loss and injury sustained by plaintiff by reason of the sending out of the circulars as set forth in paragraph 4 of plaintiff’s second cause of action. Argued before VAR BRUNT, P. J., and FOLLETT and PARKER, JJ.
plaintiff, and declined and refused to enter into contracts with him, for the lease or sale to them of said patent or invention, whereby this plaintiff was put to serious pecuniary loss and injury, to his damage ten thousand dollars. Wherefore plaintiff demands judgment against defendant in the sum of thirty thousand dollars, together with the costs of this action.
Lehmaier & Williams, (James S. Lehmaier, of counsel,) for appellant.
Lucius McAdam, for respondent.
This is an action for the recovery of damages for the publication of matter alleged to be defamatory. It is
p. 348
alleged in the complaint that by reason of the publication the plaintiff has been greatly injured in his reputation and business. The following is the allegation of special damages sought to be recovered:
“That by reason Qf the sending of said circulars many persons, firms, and corporations were intimidated, and canceled contracts already made with him, said plaintiff, and declined and refused to enter into contracts with him, for the lease or sale to them of said patent or invention, whereby this plaintiff was put to serious pecuniary loss and injury, to his damage ten thousand dollars.”
It has been several times held that when special damages are sought to be recovered the particulars relating to those damages must be given. Infant Asylum v. Roosevelt, 35 Hun, 501 ; Dwight v. Insurance Co., 84 N. Y. 493 ; Kraft v. Dingee, 38 Hun, 345 ; Childs v. Tuttle, 48 Hun, 228 ; Peabody v. Cortada, (Sup.) 18 N. Y. Supp. 622 . The plaintiff should state the names and addresses of the persons,' firms, and corporations who were intimidated and canceled contracts entered into with him, and who refused to contract with him, by reason of the publication set out in the complaint. The order should be reversed, and the motion granted in accordance with this opinion, with $10 costs and disbursements of appeal, and $10 costs of motion.
Cases cited
- Dwight v. Germania Life Insurance 84 N. Y. 493 p. 348