FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. to the sense and substance of it, although the language be to some extent his own, the man making the request is as liable to an action as the publisher. If the law were otherwise, it would in many cases throw a shield over those who are the real authors of libels and who seek to defame others under what would then be the safe shelter of intermediate agents. (Folk. Stark. Sland. & Lib. [4th ed.] § 539.) In Adams v. Kelly (Ry. & Mood. 157) a reporter prepared an article from a conversation with the defendant and inserted it in a newspaper. ABBOTT, Ch. J., held that what the reporter published in consequence of what passed with the defendant might be considered as published by the defendant. The serious questions arise upon exceptions to the reception of evidence against the defendant upon the trial. It appeared that there was a creamery at Columbus, Warren County, Penn., a village a few miles from Corry and within the range of the circulation of the Corry Daily Leader. The plaintiff purchased the creamery on the 11th of July, 1896, previous to the publication of the libel (which was on the 27th day of July, 1896), with a view of operating it himself. The purchase was made of Fred W. Edmunds, who was a witness for the plaintiff upon the trial. Edmunds testified that the plaintiff was to have the possession of the creamery as soon as he could get his goods moved from Clarence Center, but that he did not take possession of it and he was asked by the plaintiff's counsel "Why, what happened? Why he didn't take possession?" The witness answered: "There was an article published." The counsel for the defendant objected to this upon the ground that it was incompetent and immaterial and that the plaintiff was not entitled to recover special damages in this action if he is to recover at all. The court said he would overrule the objection, but stated that the question might come up when the case went to the jury upon the question of damages, to which the defendant's counsel excepted. The witness then proceeded to state that he read the libelous article on the twenty-eighth of July; that that article was the subject of conversation among the patrons of this Columbus Creamery, the village people and the merchants. That at that time he had given the plaintiff a deed of the property but not the possession, and that the witness was still operating the creamery and making butter for the patrons of the concern; that the plaintiff had not come and that App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. this article published in the paper was under discussion. Question by the plaintiff's counsel. "Now I ask him (the witness) what notice the patrons served upon him, if this man Roberts came there to take possession, regarding their patronage of this factory?" Then the following occurred: "The Court: What do you claim from that, that it was communicated to the plaintiff? Mr. Randall (plaintiff's counsel): I claim that the plaintiff was unable to take possession of this factory and go on with his work by reason of this article without the loss of a majority of the patronage that went with this factory; that they simply notified Mr. Edmunds that if a man of this character came there to take charge of this factory and handled their butter Mr. Jellinek (defendant's counsel): You are getting that all in; I do not think it is right. The Court: No, he is not getting it in as evidence. “Mr. Jellinek (the defendant's counsel): It has the effect. Mr. Randall (continuing): They wouldn't patronize him and gave notice to Mr. Edmunds, who was in possession, and as the result Mr. Roberts has never yet- The Court: Well, it is not a claim that they refused to deliver over the possession-perform the contract, but a claim that this information was communicated to your client." * * * To which Mr. Randall assented. "The Court: I will receive the evidence, give you an exception (to defendant's counsel)." The defendant's counsel then objected on the ground that it is incompetent and being mere hearsay, and said, "Give me an exception." The witness continuing said: "They (the patrons) said that if I had sold the property to such a man as that they wouldn't patronize the factory but would go to other factories near by and they would withdraw their patronage; several farmers told me that." The witness was then questioned about other factories in that vicinity, and he testified as to several and their locations under objection and the exceptions of the defendant that it was an attempt to prove special damages, and that the plaintiff was not entitled to recover special damages. The witness then, over defendant's objection and exception, said that these patrons had told him that they had read the article in the paper, and he proceeded to say FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. that, in consequence of the attitude of these patrons, he had retained a manager of the factory until the twenty-fourth of November; that this man was kept there in the place of Mr. Roberts; that Roberts did not have charge during that time because the witness was afraid that the patronage would go away if he did; that the man was paid fifty dollars per month from the eleventh day of July to the twentyfourth of November at the expense of Mr. Roberts. The plaintiff produced Hartson S. Ayer, another witness, who resided at Columbus borough. He was a patron of the creamery there, and frequently at the creamery, and he stated that the article in the paper being circulated among the patrons they came to the creamery and talked with the witness about it. Question by plaintiff's counsel: "Q. What did they say to you about what they proposed to do with their milk if this man (plaintiff) came?" This was objected to by the defendant's counsel upon the ground that it was incompetent and immaterial. The court overruled the objection, to which the defendant excepted. The witness then proceeded to state that the patrons informed him that he ought to tell Mr. Edmunds (the witness before alluded to) to influence the plaintiff not to come there as it would ruin the creamery; that he did so communicate to Edmunds and advised him either to prevent the plaintiff from taking possession of the factory until the plaintiff cleared himself of this stain upon him or sell the factory; that there was another creamery within three miles, a new one, and that the opposition was very sharp. the Finally the plaintiff was introduced as a witness in his own behalf and he was asked why he did not go to Corry, after the publication of the article, by his counsel. The defendant objected upon ground that it was incompetent. The court overruled this objection and the defendant excepted. The witness testified that they told him it was no use for him to come to Columbus; that he could not hold the patronage; that Edmunds was the first man that told him so, and without the patronage the creamery would be useless to him. The counsel for the defendant moved to strike out this evidence, which was refused and the counsel for defendant excepted. All this evidence was for the purpose of proving special damage, App. Div ] FOURTH DEPARTMENT, JUNE TERM, 1898. viz.: That the plaintiff had suffered damage on account of the attitude of the patrons of the Columbus Creamery. This was clearly a special damage that should have been alleged in the complaint. It is analogous to the damages sustained from the loss of employment or custom. The defendant must have distinct notice in the complaint of such a claim being made. (Sedg. Dam. [8th ed.] §§ 443, 1261; Abb. Tr. Ev. 669; Backus v. Richardson, 5 Johns. 476, 485; Tobias v. Harland, 4 Wend. 537; Hallock v. Miller, 2 Barb. 630; Solms v. Lias, 16 Abb. Pr. 311; Hallock v. Belcher, 42 Barb. 199.) Thus a loss of customers is a special damage. The plaintiff cannot show the loss of any customers except such as are named. (Backus v. Richardson, supra.) "Damages," says Mr. Chitty, "are either general or special; general damages are such as the law implies or presumes to have acerned from the wrong complained of. Special damages are such as really took place and are not implied by law, and are either superadded to general damages arising from an act injurious in itself, as where some particular loss arises from the uttering of slanderous words actionable in themselves, or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as where words become actionable only by reason of special damage ensuing. * It does not appear necessary to state the formal description of damages in the declaration because presumptions of law are not in general to be pleaded or averred as facts. * * * But when the law does not necessarily imply that the plaintiff sustained damage by the act complained of, it is essential to the validity of the declaration that the resulting damage should be shown with particularity." (1 Chitty Plead. 410, 411.) * * The objections taken by the counsel for the defendant to which we have referred were broad enough to reach the objection that this special damage was not alleged in the complaint. The court charged the jury, in effect, it might consider this evidence as to the special damage upon the question of damages. To this there was no exception, but we do not think that the failure to except in this regard was a waiver by the defendant of the exceptions taken by his counsel to the admission of the evidence. But the proof was in the case in spite of the defendant's objections, and the only way to relieve the case of the vice of the admis Fourth DepaRTMENT, JUNE TERM, 1898. [Vol. 31. sion of this evidence, was for the court by a clear and distinct charge to instruct the jury not to consider that evidence or allow special damages, and to have stricken the evidence from the case and directed the jury to disregard it. But waiving that question, there was so much evidence of an incompetent and of a hearsay character, admitted over the defendant's objection, that was not competent to establish the special damage claimed, or for any other purpose, but might have and probably did influence the jury, that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event. 31 438 157a 431 157a 673 THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN WHITE, Respondent, v. THE BOARD OF ALDERMEN OF THE CITY OF BUFFALO, Constituting the Board of Canvassers of the City of Buffalo, and Others, Defendants; JOHN BARRY and JAMES COYLE, Two of the Inspectors of Election of the Third Election District of the First Ward of the City of Buffalo, N. Y., Appellants. Election indorsements, on ballots marked for identification, which do not conform to the statute what may be considered in determining the meaning of such indorsements-common-law jurisdiction by mandamus is not divested by the statutory provision for that writ—intention of the voter not considered. Although the provisions of subdivision 3 of section 110 of chapter 909 of the Laws of 1896 (the Election Law), requiring, when a ballot is not void, and the ballot is challenged as having been marked for the purpose of identification, that the inspectors shall write on the back of said ballot the words "objected to because marked for identification," specifying such mark or marking, and signing the statement, have not been complied with, the Supreme Court has, nevertheless, jurisdiction, in proceedings instituted under section 114 of that act, to issue a mandamus to the board, or body of canvassers, or inspectors of election, requiring a recount of the vote upon which such ballots shall be excluded, where it appears that the inspectors indorsed the ballots "protested," stating the reasons, and that the "protests" referred to in the indorsements related to the marks for identification. The statutory provisions authorizing proceedings by mandamus in election cases do not divest the court of its common-law jurisdiction, and where the inspectors |