Benjamin Aslan for plaintiff.
Charles Henry and
Harvey L. Lipton for defendants.
I see no difference in principle between an allegation as to the nonpublished fact of plaintiff's race or matrimonial status and the nonpublished fact of plaintiff's business or profession (see
Morey v. Morning Journal Assn., 123 N.Y. 207). Both are facts dehors the publication. Both are so-called extrinsic facts, but in my view neither is such an "extrinsic fact" as to require special damage to be pleaded and proved before an action for libel will lie. (See
Ferrand v. Brooklyn Daily Eagle & Tri-Co. Pub. Corp., N. Y. L. J., Dec. 5, 1933, p. 2100, col. 2, affd. 241 App. Div. 752, motions for leave to appeal to the Court of Appeals denied, 241 App. Div. 816;
Spector v. News Syndicate Co., 280 N.Y. 346; and Seelman on Law of Libel and Slander [ch. II, 1941 Supp.], pp. 20-23.) Of course, by way of denial or defense, if pleaded, many issues may remain — such as the truth of publication or innuendo, whether or not a settlement was in fact made and why, as to newsworthiness, fair comment, privilege and other matters. What I hold here is that the present motion by the defendants for judgment on the pleadings dismissing the complaint because of alleged insufficiency on its face must be and is denied. Order signed.