Opinion
March 13, 1950.
On the court's motion, the decision of this court handed down March 6, 1950 ( ante, p. 1017), is amended to read as follows: In an action to recover damages for alleged libels, defendants' motion, under rule 106 of the Rules of Civil Practice, to dismiss each cause of action set forth in the amended complaint, was granted to the extent of ordering the dismissal of eight causes of action and denied in all other respects. Both sides appeal from the portions of the order unfavorable to them. Order modified on the law and the facts by adding to the first ordering paragraph all other causes of action except the twenty-first and the twenty-second. As thus modified the order, insofar as appeals are taken, is affirmed, without costs. It appears as matter of law that the publications set forth in the several causes of action ordered dismissed are not defamatory; and there are no allegations of special or actual injury.
I concur and vote to affirm the order insofar as concerns the eight causes of action which were therein dismissed. I also concur with the majority of the court in the modification of the order to dismiss all the remaining causes of action, except the twenty-first and twenty-second, as to which causes of action I dissent and vote to dismiss same. I find myself in disagreement as to causes of action twenty-first and twenty-second, which the majority finds state good causes of action. Cause of action twenty-first does not, in my opinion, state matter which is libelous per se, in that it charges plaintiff Wekstein with no crime nor necessarily injures him in his profession. Cause of action twenty-second clearly relates to a class and not an individual; the individual referred to as a shyster is clearly "Mr. May" and not as plaintiff Friedman contends "meaning the plaintiff Friedman". I do not find a single good cause of action in the complaint.