Art. 15. Slander of Title.-Libel on Business.

or carelessly published. Crane v. Bennett, 77 App. Div. 102, 79 N. Y. Supp. 66.

For fuller consideration of this question see Malice," ""Pleading," "Evidence," relative to damages.

ARTICLE XV.

SLANDER OF TITLE.- LIBEL ON BUSINESS.

Bigelow on Torts, p. 87, says that the only real connection an action for slander of title has with actions for slander is in the name the action bears and in the plaintiff's pleading.

It is incumbent upon the plaintiff, in order to maintain an action for slander of property or of title, to prove (1) The words must be false; (2) they must be maliciously published; (3) they must result in a pecuniary loss or injury to the plaintiff. Newell, 204.

There must be malice, either express or implied, to maintain an action for slander of title. Hargrove v. Le Breton, 4 Burr. 2422 (1769), Eng. ruling cases, vol. 9, p. 168; Smith v. Spooner, 3 Taunt. 246 (1810), ruling cases, vol. 9, p. 173.

A person may be as seriously injured by misrepresentation of his property as by the slander of himself in respect to his business, and indeed the two often go together. But there may be misrepresentation in respect to particular property not connected with one's business and where the injury will concern the property alone. Such misrepresentation is actionable, provided it is malicious and damaging, but malice will not be presumed and damage must be alleged and proved. Cooley, 260, citing Gott v. Pulsifer, 122 Mass. 235; s. c., 23 Am. Rep. 322.

To support the action it must be shown that false words maliciously spoken were followed as a legal consequence by pecuniary damage to plaintiff, and these facts must be specially alleged and substantially proven. Bailey v. Dean, 5 Barb. 297; Kendall v. Stone, 5 N. Y. 14; Childs v. Tuttle, 48 Hun, 228.

An action for slander of title depends for success upon two elements; namely, falsity and malice. Hastings v. Giles Lithographic Co., 51 Hun, 364 (369), 4 N. Y. Supp. 319, citing Kendall v. Stone, 5 N. Y. 14 (18); Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119.

It is said in Hovey v. Rubber Tip Pencil Co., 57 N. Y.

Art. 15. Slander of Title.-Libel on Business.

119, that to maintain an action for a libel injurious to plaintiff's business, it must be shown that not only defendant's publication was not justified in fact, but that it was with malice or a willful purpose of inflicting injury. Distinguishing Snow v. Judson, 38 Barb. 210.

This seems, however, to be true only in cases where the publication is in fact a privileged communication. Lowell Co. v. Houghton et al., 116 N. Y. 520 (525), citing Klinck v. Colby, 46 N. Y. 427.

This subject is considered and the authorities collated and discussed in Le Massena v. Storm, 62 App. Div. 150, 70 N. Y. Supp. 882, where it is said: "When the slander is of a property right or title, or of a thing, falsity of utterance, malice, and special damages flowing or resulting necessarily or naturally as the proximate consequence must be alleged and shown by the plaintiff, except in those cases where the slanderous words also impute to the owner dishonesty, fraud, deception, or other misconduct in his trade or business in connection, with the property. (Odgers on Libel and Slander [3d ed.], 30, 73, 88, 156; Newell on Slander and Libel [2d ed.], 203, 204, 208, 217; Townshend on Slander and Libel [4th ed.], §§ 205, 206; Kendall v. Stone, 5 N. Y. 14; Like v. McKinstry, 41 Barb. 186; Evans v. Harlow, 5 Q. B. 624; Young v. Macrae, 3 B. & S. 264; Wilson v. Du Bois, 35 Minn. 471.)"

The following citation from Odgers (3d ed.), p. 30, is quoted as laying down the true rule.

"Sometimes, also, an attack upon a thing may be defamatory of the owner of that thing or of others immediately connected with it. But this is only so where an attack upon the thing is also an indirect attack upon the individual. If the words do not touch the personal character or professional conduct of the individual they are not defamatory of him and no action lies (unless the words fall within the rules relating to slander of title). But to impute. that the goods which the plaintiff sells or manufactures are adulterated to his knowledge is a distinct charge against the plaintiff of fraud and dishonesty in his trade." Again, the learned author says (p. 73): "But it is not the law that any words spoken to the disparagement of an officer, professional man, or trader will, ipso facto, be actionable per se. Words to be actionable on this ground 'must touch the plaintiff in his office, profession, or trade;'

Art. 15. Slander of Title.-Libel on Business.

that is, they must be shown to have been spoken of the plaintiff in relation thereto and to be such as would prejudice him therein. They must impeach either his skill or knowledge or attack his. conduct therein."

Tobias v. Harland, 4 Wend. 537, and Kennedy v. Press Publishing Co., 41 Hun, 422; Bosi v. New York Herald Co., 33 Misc. Rep. 622, 68 N. Y. Supp. 898, are cited to the same principle, the latter case laying down the rule to be that the plaintiff has no action where the libel is on his place of business and not of himself, unless he alleges and proves that he has sustained special damage as a necessary consequence of the publication.

This citation of authority is followed by a discussion of the necessity for alleging special damage to an individual in such

case.

The rule in Tobias v. Harland, 4 Wend. 537, is cited with approval in Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, which was an action brought to restrain criticisms of a manufactured article published in a magazine; in discussing the doctrine that equity will not interfere in such case, authorities above cited were referred to, and in addition thereto Dooling v. Budget Publish. Co., 144 Mass. 258, where it was held that "words relating merely to the quality of the articles made, produced, furnished, or sold by a person, if false and malicious, are not actionable without special damage.

A publication charging that a certain house is a bawdy-house refers to the character of the occupants and is not merely a libel on the house, and one of its occupants may maintain an action for libel. McLean v. N. Y. Press Co., 46 St. Rep. 706, 19 N. Y. Supp. 262.

A complaint alleging the publication of an article stating that the police raided a house occupied by the plaintiff, that persons in it were guilty of gambling, and that the persons seeking the information were ushered into the room where the gambling occurred, is not demurrable as a libel of the house and not of the plaintiff, as it may be inferred that the gambling was conducted with the knowledge of plaintiff. Dexter v. Press Publishing Co., 36 Misc. Rep. 388, 73 N. Y. Supp. 706, distinguishing Kennedy v. Press Publishing Co., 41 Hun, 422, and Bosi v. N. Y. Herald Co., 33 Misc. Rep. 622, 68 N. Y. Supp. 898, affirmed 58 App. Div. 619, 68 N. Y. Supp. 1134, upon the ground that in the Kennedy Case

Art. 15. Slander of Title. Libel on Business.

the alleged libel, if any, was that the plaintiff was the proprietor of a concert hall which was the resort of improper characters, and that there was no charge against the individuals who conducted the places, nor any claim that there was anything illegal in the mainte nance of the places. In the Bosi Case the alleged libel was that the plaintiff's restaurant was the resort of anarchists. To the point that the libel was against the person in this case, Penal Code, § 343, is cited.

In Neil v. Fords, Howard & Hulbert, 72 Hun, 12, 25 N. Y. Supp. 406, a judgment was affirmed where damages were sought by reason of libelous words with reference to a work published by plaintiff.

In Stern v. Barrett Chemical Co., 29 Misc. Rep. 609, 61 N. Y. Supp. 221, a judgment was reversed obtained for damages sustained by plaintiff by reason of the publication by defendant of a libel concerning plaintiff in his business as a manufacturer. Case reported below, 28 Misc. Rep. 429, 58 N. Y. Supp. 1129.

Defendant falsely stated that he had a claim or mortgage against plaintiff's place of business, and that if any brewer belonging to an association of brewers sold beer to plaintiff, the defendant, under an agreement with said association, would hold that person and the society liable for said claim; whereon the society discontinued the sale of beer to plaintiff, by which he was greatly damaged. Held, that the words tended to injure the plaintiff in his business and constituted actionable slander. Ryan v. Burger & Homer Brewing Co., 37 St. Rep. 287, 13 N. Y. Supp. 660, citing Onslow v. Horn, 3 Wils. 177, referred to in Moore v. Francis, 121 N. Y. 199, in the following language: "The law allows this form of action not only to protect a man's character, but to protect him in his occupation, although no fraud or dishonesty is charged and although the words were spoken without actual malice."

A complaint by a corporation which shows that the publication of false reports concerning it have caused pecuniary injury is sufficient, although it is a business and not a moneyed corporation. Mutual Reserve Fund Life Assn. v. Spectator Co., 50 N. Y. Super. 460.

The printing and circulation of a circular stating among other things, in substance, that an unscrupulous grocer was selling an inferior article with a view to deceive the public, is libelous per se.

Art. 15. Slander of Title.-Libel on Business.

Davey v. Davey, 22 Misc. Rep. 668, 50 N. Y. Supp. 161, citing numerous authorities.

Slander of title to personal property as well as real estate is actionable. Like v. McKinstry, 4 Keyes, 397, 3 Abb. Ct. App. Dec. 62.

In Dodge v. Colby, 108 N. Y. 445, it was held that the allegations by defendant which were alleged to be slanderous "were false and defamatory and were made and caused to be circulated by defendant and by his agent maliciously, and with the intent to injure the said plaintiff and his title to the said lands," stated a cause of action and that the demurrer conceded the truth of the allegation.

Action for slander of title cannot be based upon a notice given by a tenant at a judicial sale of the premises, stating facts upon which he claims a continuous right of possession, where the statement in such notice is true, and there is no basis for an allegation of malice. Cornwell v. Parke, 52 Hun, 596, 5 N. Y. Supp. 905.

In Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, the plaintiff sought to restrain the defendants from unjust and malicious criticisms of a manufactured article, upon the ground that the manufacturer of the article had no remedy at law because of his inability to prove special damage. It was held that this subject was not the subject of equitable cognizance, and that the future publication of such articles could not be restrained by injunction. Parker, Ch. J., in the opinion collates and comments upon the authorities in this and other jurisdictions, and arrives at the conclusion that all well-considered decisions agree in determining to be the law that a court of equity has not jurisdiction to grant the relief to secure which the action was brought.