Knickerbocker Life Insurance v. Ecclesine

11 Abb. Pr. 385

Opinions

By the Court.—Monell, J.

Footnotes

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I think both orders should be affirmed; the order discharging the arrest for the very satisfactory reasons stated by the learned justice at special term, and the other for the reason that if the averment of special damage is made definite in the particulars specified in the order, there will be a prima facie cause of action against the defendant. We all agree, that without proof of special damage the action cannot be maintained: in other words, we agree that with proof of special damage it may be maintained. As an allegation in a pleading, I think it would be sufficient, if it contained the matter required by the order, and that, it seems to me, is the only question before us on this appeal. The matter alleged against the defendant is not per se libelous ; but if the plaintiffs can satisfy a jury that such matter is injurious to them and was maliciously published, they can recover if they also show that they have been specially damaged.

Ereedmak, J., concurred.

Present, Monell, Jones and Freedman, JJ.