Opinion
November 9, 1961
Appeal from the City Court of the City of New York, New York County, DARWIN W. TELESFORD, J.
White Case ( Chester Bordeau of counsel), for appellant.
Seymour Frank and N. Barry Ross for respondent.
Assuming in the plaintiff's favor the matter in the mercantile report of which he complains to be libelous per se, he nevertheless may not maintain this action, for the defendant has shown that the report was compiled in the regular course of its business as a mercantile agency by competent persons and from sources believed to be reliable and was furnished only to subscribers to its services on their request and for their exclusive confidential use and that it acted in good faith and without malice. The plaintiff has adduced no evidentiary facts tending to overcome the foregoing. In the circumstances, the publication was protected by qualified privilege ( Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56; Ormsby v. Douglass, 37 N.Y. 477, 479: Ashcroft v. Hammond, 197 N.Y. 488, 494; Pecue v. West, 233 N.Y. 316, 322-323).
The order should be reversed, with $10 costs, and disbursements, and motion granted.
Concur — HOFSTADTER, J.P., TILZER and GOLD, JJ.
Order reversed, etc.