Opinion
April, 1903.
Ira Leo Bamberger for plaintiff.
Mirabeau L. Towns for defendant.
The complaint is not founded on the alleged libelous words in their general meaning (i.e., in all the meanings they are susceptible of), but on particular meanings which are alleged in the complaint. It is not necessary, therefore, to see whether the words will bear any libelous meaning other than those alleged in the complaint. The plaintiff in an action for libel may always avoid an issue on a meaning of which the words are susceptible by confining the complaint to another meaning or other meanings only. If, however, he is not content to sue on the words in their general meaning, but picks out and alleges a particular meaning in his complaint, and complains of that meaning only, he must, under our system of pleading, rest upon that meaning alone on the trial. If he fails on that meaning, he cannot fall back on the general meaning. The meaning complained of in the complaint is obviously the only meaning the defendant has to plead to and meet at the trial. He is not called upon, for instance, to plead and prove in justification the truth of the published words in a particular and meaning not complained of at all (Wuest v. Brooklyn Citizen, 38 Misc. 1; Westbrook v. New York Sun Assn., 32 id. 37; Smid v. Bernard, 31 id. 35).
The published words in this case are not susceptible of the particular meanings alleged in the complaint; and therefore the complaint does not state a cause of action. They do not charge the plaintiff "with neglect in the support and maintenance of his wife and children", or "with reducing" them "to starvation and not procuring for and giving to them the necessaries of life", or "with conducting and managing" his home "in an uncivilized, unnatural and improper manner", or that he was "guilty of inhuman, unnatural, improper and disgraceful conduct", as is alleged in the complaint. They convey the opposite meaning, i.e., that instead of neglecting his family, or sinning against them in any way, the plaintiff was loyal to them and did his best for them.
It is now suggested that special damages are alleged in paragraph seventh of the complaint, and that therefore the complaint is sufficient, even though the words be not a libel per se. But, as already pointed out, the complaint alleges and is based exclusively upon meanings which do not exist, and therefore no damage of any kind can be predicated thereon. Moreover, paragraph seventh does not allege any items of special damage, and that is the only way that special damage can be alleged. The particular contracts, sales, employments, customers, etc., lost or prevented have to be specifically alleged, giving names, dates, etc. (Cruikshank v. Bennett, 30 Misc. 232; Smid v. Bernard, 31 id. 35).
The motion is denied.