Supreme Court, March, 1900. [Vol. 31. that label is duly registered; and it cannot be counterfeited Mr. Smid. We therefore ask the respected public in the Bohemian quarter to avoid the business of Mr. Smid. For the Baker's Union No. 22. COMMITTEE ”. The allegation of damage is that by such publications "the plaintiff has been and still is greatly injured in his good name, fame and credit and brought into public scandal, infamy and disgrace, and held up to public hatred, ridicule and contempt, and has suffered great loss and damage in his business, and has been brought into poverty, shame and disgrace, to the damage of the plaintiff ", &e George W. Weiffenbach for plaintiff. Michael J. Joyce for defendants. GAYNOR, J.: The publication set out in the first cause of action purports to be a communication in behalf of local bakers' union No. 22, of the international union, and consists only of statements that the plaintiff had "declared a fight" against the said bakers' union, and refused to employ its members, because they would not work for fifty cents a day, which he offered, and would wait till workmen got cheaper; and also that the plaintiff once worked for less than union wages; and concludes with a request to the public in the Bohemian quarter to pass by the plaintiff's bakery store until he makes up with the union. This is not a libel per se against the plaintiff either in his general character or as touching him in his business. He had a legal and moral right to do what it says he did; and a publication of that kind is not a libel per se (Homer v. Engelhardt, 117 Mass. 539; People v. Jerome, 1 Mann. (Mich.) 142; Sinsheimer v. United Garment Workers, 77 Hun, 215; Reeves v. Templar, 2 Jur. 137; Cox v. Cooper, 12 W. R. 75; Miller v. David, 22 W. R. 332). Nor can the statement that he wants men to work for fifty cents a day be deemed a libel per se in that it holds him up to contempt for offering starvation wages. If it were permissible to so hold in any case, the court could not do so here without taking judicial notice of the local rate of wages for the different grades of work in bakeries in the Bohemian quarter of New York city, for there is no allegation in the complaint on that head; whereas such notice could not even be taken of the rate of wages in bakeries generally. It follows that the first cause of action was properly dismissed, for a publication not libelous per se cannot be a cause of action unless special damage be pleaded as having been caused by it; and there is here no allega Misc.] Supreme Court, March, 1900. tion of special damage. The allegation that the plaintiff " has suffered great loss and damage in his business" of baker, is not an allegation of special damage, but only of general damage. A libel per se may be such against one in his general character, or only because it touches him in his business, occupation or profession, or for both reasons. The law presumes that libel per se does damage. The damage thus presumed is called general damage; and under a general allegation in the complaint of damage to character, or to business, or to both, such general damage may be proved. If such a libel be of such a character as to touch the person libelled in his business or profession, then under a general allegation of damage thereto, evidence of a general falling off of business or income is admissible. This is so because the law presumes that a libel per se which touches one in his business or profession will cause such general damage, i. e., falling off, and therefore such evidence may be given to help to show its extent. As Mr. Odgers says in his scientific and discriminating work on Libel and Slander, as "the law presumes that the plaintiff is injured in his business, so that the jury must give him some damages, evidence as to the nature and extent of the plaintiff's business before and after publication is clearly admissible to enable the jury to fix the amount" (2nd ed. p. 230-1). Such evidence is not necessary in order to have the question of such general damage to business or profession submitted to the jury, but it may show such damage to be greater than the jury would have presumed if it had not been given. But in the case of a publication which is not a libel per se, the law will not presume that it does damage of any kind. It therefore follows that a complaint for such a publication states no cause of action unless it alleges special damage, that is to say, specific items of damage, caused by it. Such special damage is (in a word) the gist of the action, and unless it be alleged no cause of action is alleged. The particular contracts, sales, employment, customers, patients or clients lost must be alleged; and unless the plaintiff prove such special damage he will be nonsuited, for he cannot have recourse to general damage, for general damage is not allowed in the case of a publication not a libel per se. Evidence of general damage, i. e., of a general falling off of business or income, cannot be received in such an action, because the law will not presume that such falling off was caused by the publication instead of by any of the numerous possible causes or by nothing. And the customer, Supreme Court, March, 1900. [Vol. 31. patient, client, and so on, alleged to be lost or not obtained because of the publication, must be examined as a witness to show that he was influenced by such publication, for the mere fact that he quit or was not obtained is no evidence, and raises no presumption, that the publication was the cause of it. And this same rule of pleading and of evidence also applies to special damage in an action for a libel per se, if such damage be there sought in addition to general damage (Odgers, 2nd ed., pp. 220-233; Cruikshank v. Bennett, 30 Misc. Rep. 232; Hallock v. Miller, 2 Barb. 630; Tobias v. Harland, 4 Wend. 536; Squier v. Gould, 14 Wend. 159; Weiss v. Whittemore, 28 Mich. 366). This rule of pleading and of evidence in actions for damages for libel or slander was so well understood and established in England and here that we find little misunderstanding or misapplication of it, and what there is of late seems to arise from momentary inadvertence. For instance, it seems odd for the clear English case of Evans v. Harries (26 L. J. Ex. 31) to be cited for the proposition that there are many cases to which this rule (i. e., the rule that special damage has to be pleaded in the manner above specified) does not apply, and in which a general allegation of loss of custom, trade, or business earnings is sufficient. Evans v. Harries was the case of a slander per se touching the plaintiff in his business of innkeeper, and, as we have seen, general damage to business is presumed by the law in the case of such a slander or libel per se, and may therefore be proved under a general allegation of damage to business; and that was the precise thing, and the only thing, decided in the case. The judges there did not contradictorily class general damage to business in the case of a slander or libel per se as special damage, and then with even stranger contradiction say it may be proved under a general allegation of damage. On the contrary, they recognized the consistent and obvious proposition that such general damage comes under the head of general damage, and may therefore be proved under a general allegation of damage to business. There was there an allegation of general damage to the plaintiff's business, and the court held that a general falling off of business was general damage, and could therefore be proved under the allegation of general damage. But if the words had not been a slander per se, such general falling off of business could not have been proved at all, for the law would not presume that it resulted from such words. No such question arose in Evans v. Harries, Misc.] Supreme Court, March, 1900. but only the question whether in the case of a libel or slander per se to one's business, a general falling off therein could be proved under a general allegation of damage thereto; and the objection to such evidence was overruled. Martin, B., made the point plain by saying: "Suppose a biscuit maker in Regent street is slandered by a man saying his biscuits are poisoned, and in consequence no one enters his shop. He cannot complain of the loss of any particular customers, for he does not know them; and how hard and unjust it would be if he could not prove the fact of the loss under a general allegation of the loss of custom." Under such general allegation" the court said that such general loss or damage could be proved. Why? Because the words would constitute a slander per se to the biscuit maker in his business, from which the law would presume such general damage to his business, and therefore he would be permitted to give evidence of the extent of such general damage under the general allegation of damage. But if the words were such as not to constitute a slander per se, the law would not permit a presumption of damage, and therefore the plaintiff could get no damage except by pleading and proving special damage. And if he could show no special damage, his case would present no hardship, for that he could show none would show there was none. Words not libelous or slanderous per se are to the court and to people in general apparently harmless, and one who claims that he is nevertheless hurt by them must plead and show how and in what particulars. And as words apparently harmless can do one no general damage, he must therefore allege and show special damage which they did him in order to make them actionable. "If the plaintiff cannot give the names of those who have ceased to deal with him, or cannot prove that their so ceasing is due to the defendant's words, he must be nonsuited; although there has in fact been a falling off in his business" (Odgers, p. 227). Instead of there being many cases to which this rule of pleading and of evidence in respect of special damage does not apply, it will be found on examination, it seems to me, that there is not one, though an inadvertent remark to that effect may of late be found here and there. The rule is that only "general" damage can be proved under a "general" allegation of damage, and that "special" damage can be proved only under an allegation of "special" damage. When the difference between what is "general damage" and what is special damage" is kept in mind, the rule is always plain. But Supreme Court, March, 1900. [Vol. 31. when general damage is inadvertently called special damage, then the rule is confused. Then only do we meet with the contradiction in terms, viz., that special damage may be proved under an allegation of general damage. For instance, while the admission of evidence of a general falling off of business, under a general allegation of damage to business, was sustained in Bergmann v. Jones (94 N. Y. 51), the learned judge writing inadvertently speaks of such general falling off as special damage, whereas it was not special damage, but, on the contrary, the general damage which the law presumed would come to the plaintiff in his business from the libel per se in that case. If the plaintiff in that case had sought damage for the loss of a particular contract, business transaction, or customer, that would have been special damage, and he would not have been permitted to prove it for not having specially pleaded it. It may be well to put in a reminder that there is a limitation to the general rule that in the case of a libel or slander per se touching one in his business or profession the law presumes that it causes general damage thereto, i. e., a general falling off therein. If the publication be not general, but only to one or a few persons, of course it cannot cause such general damage beyond the loss of their custom; for the persons to whom the publication is made are necessarily the only ones who could be influenced by it; and it must be borne in mind that the publisher of defamatory matter is not liable for its subsequent repetition by others. As oral slanders are almost invari ably spoken in the hearing of only one or a few, this limitation might be said to be the rule with them; nevertheless it seems to have been quite generally lost sight of. In Evans v. Harries, for instance, the learned judges seem not to have thought of it. In the supposed case of the biscuit maker, with his thousand little transient customers, if the slander were uttered in the hearing of only one or a few of them, that could create no presumption of general damage to his business beyond the loss of the custom of such one or few. And yet the judges leave two false impressions, one that a slander uttered in the hearing of only one or a few of them could cause all to stay away, and the other that damage could be got for such slander beyond the loss of the custom of those who heard the defendant utter it. The publication set out in the second cause of action is of the same tenor as that in the first, excepting this: "And now a word or two with you Mr. Smid. You announce to the world that your |