Opinion
May 28, 1963
Order, entered on May 4, 1962, dismissing this action as against the plaintiff corporation, and the order entered June 25, 1962, denying motion for renewal on additional affidavits and exhibits, unanimously affirmed, with $20 costs and disbursements to respondent. The appeals by the individual plaintiff from such orders are dismissed, with costs inasmuch as he is not a party to the alleged cause of action as pleaded by the plaintiff corporation. It is clear that the plaintiff corporation does not have a cause of action against the defendant to recover for the alleged libelous statement concerning the plaintiff Swan, who allegedly "headed" a "group" seeking incorporation. While it is alleged that the plaintiff corporation is the successor to and has succeeded to the rights of this group which it is alleged was an unincorporated association, it does not appear that the group was possessed of a cause of action for the alleged libel of its head, there being no allegation of special damages. (See Adirondack Record v. Lawrence, 202 App. Div. 251, and cases cited.) Nor does the plaintiff make any showing to support a cause of action directly accruing in favor of the plaintiff corporation for the alleged libel. The publication thereof occurred about three months prior to its incorporation and, thus, it did not in any way refer to the plaintiff corporation or any of its officers. In any event, there is no factual showing that such corporation was in any way libeled or damaged thereby. Plaintiff corporation does not show any issue of fact entitling it to a trial.
Concur — Botein, P.J., Breitel, Rabin, Eager and Steuer, JJ.