Kennedy v. Press Publishing Co. — 3 N.Y. St. Rep. 139

Majority

p. 139

Joseph Kennedy, Resp’t, v. The Press Publishing Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 23, 1886.)

Headnote

LlBEL-WHEN ACTIONABLE—COMPLAINT—DeMURBEB.

A libel on a thing is not actionable unless the owner of the thing alleges and proves that he has sustained pecuniary loss as a natural consequence of the publication. A libel on a thing constitutes a libel on a person when the language would import deceit and malpractice, etc., on the part of the maker of it, and then it would be actionable.

Appeal from order overruling defendant’s demurrer to the complaint.

David T. Lynch, for resp’t; Henry Melville, for app’lt.

It is settled by authority that a libel on a thing is not actionable unless the owner of the thing alleges and proves that he has sustained pecuniary loss, as a necessary or natural consequence of the publication. Townsend on Libel, par. 204; Tobias v. Harland, 4 Wend., 537 . Though some of the cases seem in conflict with this principle, the conflict is more apparent than real. A libel on a thing may constitute a libel on a person. Thus, to say of a brewer, that he adulterates his beer, would be a libel upon him in his trade, not because of the allegation that the beer was bad, but because the language would import deceit and malpractice on the part of the brewer. It is, therefore, at times difficult to determine whether the publication attacks the person or merely the thing, and any apparent conflict in the authorities arises out of this difficulty. There is no dispute as to the principle, the difference is only as to the of the rule.

In this case there is no allegation of pecuniary loss. The complaint merely alleges that the defendant published of the plaintiff the libellous article set forth. The demurrer admits only the publication and falsity of the charge. Whether the publication is a libel on the plaintiff must be determined by its examination, and not by the averment of the complaint.

The article complained of purports to be a description of

p. 140

various saloons at Coney Island, and of their frequenters. There is no mention of the plaintiff, save' that there appears in the article a cut or picture of the interior of the saloon, with the words beneath, “In Kennedy’s.” The complaint is entirely wanting in innuendoes, and its only allegations are that the plaintiff was the proprietor of a concert hall, and that the publication, the whole of which is set forth, was of and concerning him.

There is nothing in the cut or picture itself- reflecting on any person. Taking the article in the strongest sense which it would bear, with the aid of proper inuendoes, it is a charge that the saloons of which it speaks are the resort of improper characters, and that the influence of associa-. tians had there are bad. It may be also assumed that it charges that the plaintiff’s saloon is one of this character. G-ranting all this, we think the libel is on the place and not on the person. There is nothing in the article charging that the plaintiff conducts his saloon improperly, or that he is responsible for the character of the guests.

All that is alleged in the article may be true and without fault on the part of plaintiff. As the complaint avers no special damage, we think that it fails to set forth a good cause of action.

The order appealed from should be reversed, and judgment rendered for defendant on demurrer with costs, with leave to plaintiff to amend on payment of costs.

Barnard, P. J., concurs.