#### Edward F. Fagan, Respondent, *v.*New York Evening Journal Publishing Company, Appellant.

Second Department,

November 27, 1908.

Libel—pleading — special damage — publication not relating to plaintiff.

Where a publication is not libelous *per se,*the plaintiff must allege special damage or the complaint is demurrable. ’

The demurrer may be taken on the ground that the complaint does not state facts sufficient to constitute a cause of action.

Where the complaint alleges that the plaintiff for more than three years preceding the publication of the article had been a member in good standing of the telegraphers’ union and that he had not for over nine years been in the employ of the Western Union Telegraph Company, but the article related to a person of the same name as the plaintiff, who was described as a "non-union telegraph operator ” in the employ of the Western Union Telegraph Company, the com plaint shows on its face that the libel was not published of and concerning the plaintiff and a demurrer thereto should be sustained.

Woodward and Gaynor, JJ., concurred on the sole ground that the publication was not libelous.

Appeal by the defendant, the New York Evening Journal Publishing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of February, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.

*Edward A. Freshman [Clarence*J. *Shearn*with him on the brief], for the appellant.

*T. F. Von*Dorn, for the respondent.

Rich, J.:

The defendant demurred to the complaint in an action to recover damages for an alleged libel. The demurrer was overruled, and from the interlocutory judgment accordingly entered the defendant appeals.

The article alleged to constitute the libel is not libelous *per se,*consequently special damages arising from,, the publication must be *29alleged to have been sustained by the plaintiff. The article is not actionable unless special damage was the immediate and legal consequence of its publication, from which injury of a pecuniary nature resulted to the plaintiff. *(Langdon*v. *Shearer,*43 App. Div. 607; *Beecher*v. *Press Publishing Co.,*60 id. 536; *King*v. *Sun Printing & Publishing Assn.,*84 id. 310; *Walker*v. *Best,*107 id. 304.) The objection that special damages are not sufficiently pleaded may be taken by demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. *(Langdon*v. *Shearer, supra*; *Reporters' Assn.*v. *Sun Printing & Publishing Assn.,*186 N. Y. 437.) The complaint in this action insufficiently pleads special damages, and the demurrer was improperly overruled. *(Pettibone*v. *Simpson,*66 Barb. 492; *Beach*v. *Ranney,*2 Hill, 309 ; *Bosi*v. *New York Herald Co.,*33 Misc. Rep. 622; *Casale*v. *Calderone,*49 id. 555; *King*v. *Sun Printing & Publishing Assn. supra.)*

There is) another reason why the interlocutory judgment should be reversed. The plaintiff alleges that for more than three years preceding the alleged libel he had been a member in good standing of the Commercial Telegraphers’ Union of America, with the members of which organization throughout the United States lie had an extensive personal acquaintance, and his main grievance is that by reason of the publication complained of he was damaged in reputation and lost the confidence and esteem of the members of such organization. The alleged libel describes the Fagan of whom it was written as a “ non-union telegraph operator ” in the employ of the Western Union Telegraph Company. The plaintiff avers that he had not been in the employ of that company for nine years, either in New York city or elsewhere. Upon these allegations the members of the union to which plaintiff belonged were not justified in the belief that the article referred to the plaintiff, who they knew to be a union man not in the employ of the Western Union Telegraph Company, as was the Fagan, to which the article referred. It, therefore, appears upon the face of the complaint that the libel was not published of and concerning the plaintiff, and the case is brought within the rule declared in *Corr*v. *Sun Printing & Publishing Assn.*(177 N. Y. 131).

The interlocutory judgment must be reversed, with costs, and the *30demurrer sustained, with costs, with the usual leave to the plaintiff to plead over on payment of costs.

Jenks and Hooker, JJ., concurred; Woodward and Gaynor, JJ., concurred on the sole ground that the publication is not libelous.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to plead over upon the payment of costs.