Art. 2. Definitions and Distinctions.

much more pernicious, and will not so easily admit of justification." Dole v. Lyon, 10 Johns. 460.

"It may be observed that there exists a decided distinction between words spoken, and written slander. To maintain an action for the former cause, the words must either have produced a temporal loss to the plaintiff, by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, or they must impute some indictable offense involving moral turpitude. To maintain an action for a libel it is not necessary that an indictable offense should be imputed to the plaintiff. If a libel holds a party up to public scorn, contempt, and ridicule, it is actionable. (9 Johns. 214, 7 Johns. 264.)" Van Ness v. Hamilton, 19 Johns. 367.

The definition of libel is much broader than that of slander. Every slander is a libel, if published by writing, but there are many libels which are not slander. Any false publication by writing which exposes one to ridicule, hatred, contempt, or obloquy, or causes him to be shunned or avoided, is a libel per se, though if spoken it may be no slander. The definition of slander per se is not general, like that of libel, but is restricted and specific. Simpson v. The Press Publishing Co., 33 Misc. Rep. 229, 67 N. Y. Supp. 401.

SUBDIVISION 2.

Doctrine of Special Damage.

Where the law does not presume damages the damage must be temporal and not too remote. To make that class of words actionable the consequences must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words. Ringwood on Torts, 157-160.

It will be noted, as is stated by Bigelow on Torts, 155, that the clear distinction between the class of actions where words are actionable per se, and those which do not fall under those heads, is that the plaintiff, in the first instance, must prove damages in order to sustain the action, while in the classes defined as actionable per se damage is presumed.

Underhill on the Law of Torts (7th ed.), at p. 136, gives the following analysis of libel and slander bearing upon this point:

Art. 2. Definitions and Distinctions.

"(1) The imputation must be false since the truth is a good defense. (2) It must be defamatory. (3) It must have been published. (4) It must have been either expressly or impliedly malicious, and in case of slander, but not of libel, a fifth element must exist, namely, actual damage must be proved unless it would be implied from the nature of the defamatory words. It follows that if any one of the first four elements enumerated in case of libel, or any one of the five in case of slander, is absent, the action cannot be maintained."

In order to maintain an action for slander where the words are not actionable per se the plaintiff must prove some definite temporal loss. Fraser on Libel and Slander, 21.

To maintain an action upon words which are not libelous or slanderous per se plaintiff must have suffered some special damage and the recovery is limited to compensation therefor. 18 Am. & Eng. Encyc. of Law, 1085.

Special damages are such as are not inferred from the words themselves. Such damages must be specially claimed in the pleading and evidence given on the trial as to the damage resulting therefrom. When on their face the words must have injured plaintiff's reputation, they are said to be actionable in themselves, but where this is not the case, evidence must be given to show some appreciable injury following their use. The rule is that all disparaging words become actionable when followed by special damage, such as the law does not deem too remote. Newell, 849, citing Cook on Defamation, 22; Odgers, 89; Pollard v. Lyon, 91 U. S. 225; Griebel v. Rochester Printing Co., 14 N. Y. Supp.

848.

Newell further, at p. 851, lays down the rule that damages arising from the speaking of the words, not actionable in themselves, must be, first, actual and substantial; second, they must have occurred at the time of the commencement of the suit, and third, such damages must be the immediate consequences of the defamatory words. Citing to the latter proposition Pettibone v. Simpson, 66 Barb. 492.

The special damage arising from the use of words actionable per se must be averred in the complaint and proved upon the trial. Langdon v. Scherer, 43 App. Div. 607, 60 N. Y. Supp. 193, citing Bassel v. Elmore, 48 N. Y. 561.

In Le Messena v. Storm, 62 App. Div. 150, 70 N. Y. Supp. 882,

Art. 3. Remedies.

the court considers cases in which it is necessary to allege and prove special damages, citing Odgers, p. 59, to the proposition that spoken defamatory words are actionable whenever special damage has in fact resulted from their use. Newell, p. 181, that “the real practical test by which to determine whether special damage must be alleged and proved in order to make out a cause of action for defamation, is whether the language is such as necessarily must, or naturally and presumably will, occasion pecuniary damage to the person to whom it is spoken."

In Beech v. Ranney, 2 Hill, 309, it is said (312), per Bronson, J.; "When the words charged are not actionable in themselves the plaintiff must allege and prove that by reason of the slander he has sustained some pecuniary damage. It is not enough that he has suffered pain of mind, lost the society or good opinion of his neighbors, or the like, unless he has also been injured in his estate or property. It is enough, however, that the slander has prevented the party from receiving something of value which would otherwise have been conferred, though gratuitously."

It is further held that the special damages alleged must be the natural and immediate consequences of the speaking of the words. What constitutes special damage, and the method of proof will be considered under head of "Evidence" and "Damages." The necessity for alleging special damages in the pleading, under "Pleadings."

Like many other personal injuries libel may become a crime. The matter is defined and governed by sections 242-245a of the Penal Code.

The crime consists only in libel, strictly speaking; the publication must be "otherwise than by mere speech."

A threat to publish a libel, or an offer to prevent the publication

Art. 3. Remedies.

of a libel with intent to extort money, is a misdemeanor. See Penal Code, § 254.

So also is it a misdemeanor to furnish libelous information.

Penal Code, § 254a.

Extortion by means of a threat to publish or connive at the publication of a libel may, under certain circumstances, be blackmail. Penal Code, § 558.

Written or verbal threats are misdemeanors. S$ 559, 560, 561.

Penal Code,

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659

659

659

§ 1. Jurisdiction.- By virtue of section 2863 of the Code of Civil Procedure, subdivision 3, justices of the peace cannot take cognizance of a civil action to recover for libel or slander.

The justices' courts of Albany and Troy have no jurisdiction in slander and libel. See Code Civ. Proc., § 3223.

§ 2. Statute of limitations. Under the provisions of subdivision 1, section 384, of the Code, actions to recover damages for libel and slander must be commenced within two years after the cause of action accrues. In Solomon v. Bennett, 62 App. Div. 56, 70 N. Y. Supp. 856, it is held that section 405 of the Code of Procedure must be so construed that an action for libel barred by section 384 is not saved from the operation of that statute by reason of an action having been commenced in the Federal court within two years after the cause of action accrued.

§ 3. Survival and assignment of action. By section 3343, subdivision 9, of the Code, a personal injury is defined to include libel and slander. Subdivision 1 of section 1910 excepts an action to recover damages for a personal injury from those claims or demands which can be transferred or assigned. Hence a cause of action for libel and slander is not assignable.

By sections 1 and 2 of the Revised Statutes, relative to abatement of actions, originally contained in article 1, title 3, chapter 8, of part 3 (Heydecker's General Laws, 4970; Fiero Special Actions, 1203), actions for libel and slander are excepted from the

Art. 3. Remedies.

· provisions authorizing an action to be continued after the death of one of the parties, and in Moore v. Bennett, 65 Barb. 338, it is held that where the defendant in an action for libel died before final judgment, plaintiff was not entitled to an order continuing the action against the executor of the deceased defendant, for the reason that the action does not survive or continue. Shayne v. Evening Post Publishing Co., 56 App. Div. 426, 67 N. Y. Supp. 937, held that an action for libel against a corporation abated upon the expiration of the life of the corporation by the limitation contained in its articles of incorporation, and could not be revived against the trustees of the corporation in office at the time of such expiration. This holding was, however, reversed on appeal (168 N. Y. 70), and it was held that the rule that a personal action dies with a person does not extend to the civil death of either persons or corporations Hence an action for libel which has abated because of the dissolution of a corporate defendant may be continued and revived against the former directors of the defunct corporation in order to reach the assets of that corporation in their hands, as trustees, created by section 30 of the General Corporation Law for the benefit of stockholders.

SUBDIVISION 3.

Remedy by Injunction.

The earlier English doctrine was that the jurisdiction of chancery was limited to the protection of property rights which are remediless by the usual course of procedure at law, and that courts of equity would not restrain the publication of libels or works of a libelous character, even though such publications were calculated to injure the character, business, or credit of the person aggrieved, and that he would be left to pursue his remedy at law. Newell, 246a.

In Schuyler v. Curtis, 147 N. Y. 434, plaintiff brought an action to restrain defendants from making a statue or bust of a relative of plaintiff, and from causing it to be exhibited. The court held that such an action could not be maintained, and that the individual right of privacy which any person has during life dies with the person, and any right of privacy which survives is a right which pertains to the living only. The court does not appear to pass upon or even discuss the question as to whether the remedy sought by injunction could in any event have been