The complaint sets out two causes of action — one for false imprisonment and the other for malicious prosecution.' The allegation of damage is the same- in respect to each cause of action, being in these words : “ That by reason of the acts of the defendant hereinbefore' complained of, this plaintiff was greatly injured in his health, credit and reputation, and was exposed to and suffered great pain both of body and mind, and was prevented from transacting and performing his necessary affairs and biisiness in the said time required to be transacted, and this plaintiff has been damaged thereby in the sum of twenty-five thousand ($25,000) dollars.”
The plaintiff is a young lawyer who, as the jury have found, was wrongfully arrested and maliciously prosecuted by the agents of the defendant corporation, upon a charge that he had been guilty of disorderly-conduct while a passenger upon one of the defendant’s cars. Upon the trial he was-a witness in his own behalf, and was allowed to testify, over objection and exception, that he had been making a very good living up to the time of his arrest, but that afterward his business fell off to such an extent that he attempted to get work, 'by inserting an advertisement in the Law Jow'nal, but did not succeed. He stated his recollection to be that for three weeks prior to his arrest he received about $200, but after that occurrence he got very little to do. . -
■ Counsel for defendant moved to strike out all this testimony relative to the plaintiff’s loss of business, whereupon plaintiff’s counsel stated that he was not asking for special damages, and the trial judge remarked that there would be no attempt to ask for any and declared that he should instruct the jury that no special damages could be *513given for the plaintiffs loss of business. In denying the motion to .strike out, the court added : “.Plaintiffs counsel states that there is no claim made for special damages. It is simply to show the loss to his credit and reputation, and I take that on the theory that it may be evidence tending to establish loss of credit and reputation and standing with the statement 'that I shall expressly charge the jury no sum is to be awarded, if any sum is to be awarded at all, for special damages.”
This assurance was overlooked when the court came to instruct the jury, for no reference whatever to the subject of special damage can be found in the charge, nor any instruction which would •do away with the effect of the testimony in respect to the diminution of plaintiffs law business, to which I have referred.
The evidence thus received is similar in character to proof of the loss of custom by a tradesfcan. It is well settled that such loss of custom cannot be shown unless it is pleaded. In Bquier v. Gould (14 Wend. 159) the defendant placed building material in the highway opposite the premises of the plaintiff, obstructing the way to his store. Testimony was admitted on the trial tending to show ‘that customers were thereby prevented from resorting to the store. The old Supreme Court held that this proof was clearly inadmissible, inasmuch as the declaration contained no claim for damage on account of the loss of customers. It has sometimes been held that in order to warrant the reception of proof that a plaintiff has been damaged by the loss of custom in his business, the names of the particular customers who have declined any longer to deal with him must be specified (Shipman v. Burrows, 1 Hall, 442); but there are many cases to which this rule does not apply, and in which a general allegation of loss of custom, trade or business earnings is sufficient. Thus, in Evans v. Harries (26 L. J. [N. S.] [Exch.] 31), which was an action for slander affecting the plaintiff in his business, as an innkeeper, the- declaration alleged that the plaintiff had been greatly injured “ in his said trade and business, and experienced and sustained sensible and material diminution and loss in the custom and profits of the said inn in his trade and business aforesaid.” The plaintiff testified that he had lost business and sold much less ale since the slanderous words were spoken. There was a verdict *514for the plaintiff, and upon a motion to set aside the verdict for the improper reception of evidence, it was contended that, under the allegation of loss of custom, the plaintiff could not properly be allowed to give in evidence the loss of any whose names were not specified in the declaration. The Court of Exchequer, however, refused to interfere with the verdict, thus holding in substance that damages might be awarded for loss of trade caused by the wrongful acts of a defendant under a general allegation that, his business had thereby been diminished. “ Suppose a biscuit-baker in Regent ' street,” said Baron Martin, “.is slandered by a man saying his biscuits are poisoned, and in consequence no one enters his shop. He cannot complain of the loss of any particular customers, for he does not know them ; and how hard and unjust it would be if he could not prove the fact of the loss under a general allegation of loss of custom.” Proof of this kind, without any specification of the particular customers lost, was received under a general allegation of loss of custom in the Case of Swain v. Schieffelin (134 N. Y. 471).
In the present case, however, it is to be observed that there is no allegation” that the plaintiff suffered any injury in his business or* profession, or that his earnings were in 'anywise reduced as a consequence of the false imprisonment and malicious prosecution of which he complains. The averment that he “ was prevented from transacting and performing his necessary affairs and business in the said time required to be transacted,” plainly relates merely to his enforced absence from business during the short time that the case was before the magistrate. It has no reference to any such diminution in the amount of his professional income as was attempted to be shown. The case in this respect is very much like Taylor v. Town of Monroe (43 Conn. 36). That was an action of trespass for an injury arising out of a defect in a highway. The declaration alleged “ that the plaintiff had been prevented from attending to her ordinary business.” There was no statement as to the character .of the business, nor was there any mention of .earnings or loss of earnings. Upon the trial, for the purpose of enhancing the damages, the plaintiff endeavored to prove that she had been for many years employed in a button shop as a button maker, and accustomed in such employment to. earn from $300 to $350 a year, and that she- had been *515deprived of this earning power by reason of the accident which befell her owing to the defective condition of the defendant’s road. The court held that the evidence was not intended simply to show the effect and extent of the injury, but to enhance the damages by showing the loss of earnings in a special employment requiring some special skill and training, and to which the plaintiff had devoted many years of her life. “ These damages, therefore,” said Loomis, J., “ were not the necessary result of the acts set out in the declaration, and could not be implied by law; but they were special damages which, in order to prevent a surprise upon the defendant, must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them at the trial. This doctrine is unquestionable.” (See, also, Tomlinson v. Town of Derby, 43 Conn. 562.)
Stanfield v. Phillips (78 Penn. St. 73) was an action for malí-' cious arrest, the declaration concluding with the words that “ by means of the premises the said plaintiff was and is injured in his credit and circumstances and otherwise greatly damnified,” etc; Upon the trial the plaintiff proposed to show in what manner he had been injured in credit and circumstances and to what extent. The evidence was objected to “ because no special damage is averred in the declaration, because the evidence should be confined to specific acts of damage, and because the matters were not elements of damage to be recovered in this action.” . The court overruled the objection and allowed a witness for the plaintiff to testify in substance that .the effect of the arrest was to completely tie the hands of the firm to which the plaintiff belonged, and compel it to suspend business; also, that the firm had to pay its legal fees amounting to about $1,000, which trouble, however, was very little compared to its other troubles. Upon appeal to the Supreme Court the judgment was reversed solely on account of the error of the trial court in receiving this testimony. ' Mr. Justice Gordon said :
“ The declaration in this case was general, and, therefore, only such general damages as the law would presume to flow from the illegal arrest complained of could be recovered under it. * * * If the plaintiff desired to recover special damages, he should have set forth the cause which produced them, with particularity, in order that the defendants might know with certainty what they had to meet. This *516rule imposes no hardship lipón the plaintiff, and the enforcement of it is but a matter of justice to defendant.”
The amount of the verdict rendered in this action leaves very little doubt that the jury were influenced, and, probably, largely influenced, by this objectionable testimony, which, indeed, tended to give them the idea that the plaintiff’s law business had been practically destroyed by the wrongful.conduct of the. defendant’s agents in causing’him to be arrested and prosecuted. Whether this effect could have been prevented by the instructions which the "learned trial judge evidently intended to give the jury on this subject, cannot now be determined, inasmuch as the matter seems to have been wholly forgotten in the charge. The error in receiving this proof and allowing it to remain in the case is too serious to be disregarded, ■ and in my opinion leaves us no option but to reverse the judgment.
All concurred, except Goodrich, P. J., who read for affirmance, and Hirschberg, J., taking no part.