Opinion
December 27, 1963
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of a Special Term, Supreme Court, Delaware County. We agree with the appellant that the words of defamation pleaded in this libel action are not libelous per se. But they are, on their face, sufficiently defamatory to justify a recovery if plaintiff has sustained special damage. The complaint pleads special damage, but the court was of opinion it was insufficiently pleaded in form and granted defendant's motion to dismiss the complaint to the extent of striking out the paragraph pleading special damage, with right to replead. Thus both under the original complaint and presumably under the amended complaint, plaintiff will rely on special damage and in such a situation the complaint as a whole pleading will not be dismissed for the reason that the words of defamation are not libelous per se. Order unanimously affirmed, with $10 costs.