(dissenting). The complaint is in libel. It is founded upon a letter written by defendants to plaintiff’s *734employer, charging in effect that plaintiff was. in arrears in the payment of a single indebtedness. I agree with the Special Term that within the authorities there is nothing in the letter that, as pleaded, may be held to be libelous per se. To falsely so write as to a single account does not so expose one to obloquy, ridicule or disgrace or so cause one to be shunned, that general damage may be inferred.
In Woodruff v. Bradstreet Co. (116 N. Y. 217) cited by the Special Term, the gravamen of the alleged libel was the publication of the recovery of a judgment for money. Such was held not to be libelous per se. The court there reasoned (p. 222) that the “ * * * recovery of a judgment does not necessarily import conceded default in payment of a debt.” And further “ It is a matter of frequent observation that controversies, arising apparently out of an honest difference of opinion, go into the courts for determination. Litigation also not infrequently comes from causes. in which is involved no personal credit or default. There is nothing in the defendant’s report to indicate that the judgment was produced by any cause prejudicial to the credit of the plaintiff, and there is no presumption in that respect upon the subject in aid of the action.” While in that case only the rendition of a money judgment was published, and the comment relative the absence of an import of conceded default is somewhat significant; still the weight of authority seems to be that falsely writing of one concerning or charging delinquency in the payment of a debt is not thus libelous, when the alleged debtor is not a merchant or so engaged that financial credit is a necessary factor in his trade or business. Such were the holdings in Stannard v. Wilcox & Gibbs (118 Md. 151) and cases cited therein; Windisch-Muhlhauser Brewing Co. v. Bacom (21 Ky. L. Rep. 928); Harrison v. Burger (212 Ala. 670); Fry v. McCord Bros. (95 Tenn. 678). The following excerpt from Nichols v. Daily Reporter Co. (30 Utah 74, 79) seems in point, viz.: “To write and publish of one not a trader or merchant and not of or concerning his business affairs that he is indebted to another, and, though able to pay, has neglected or refused to do so, is that such an impeachment of honesty, or does it import such degradation of morals or character, or expose him to public hatred or ridicule, or tend to disgrace him, as a court can say its publication necessarily must, in fact, or, by a presumption of evidence, occasion damage and pecuniary loss to him, and, therefore, he was relieved from otherwise alleging or proving *735any? We think not. We are not saying that such language may not, as a natural and proximate consequence, occasion loss and damage; but the plaintiff, in order to recover, must allege and prove them.” Since the complaint in question pleads no special damages and the alleged cause of action is so pleaded that its legal sufficiency must be based upon the matter counted upon being libelous per se, I therefore think the Special Term was correct in dismissing it on the motion made therefor.
However, for the reasons next stated, I think it proper to direct a modification of the order and judgment of dismissal by permitting plaintiff, on terms, to plead over or anew. I assume he would need this in order to do that, and that we have power to grant it under section 283 of the Civil Practice Act. Such appears to be an indulgence usually granted. (Hehmeyer v. Harper’s Weekly Corporation, 170 App. Div. 459, 463; Fagan v. New York Evening Journal Publishing Co., 129 App. Div. 28, 30; Ellenborger v. Slocum, 123 N. Y. S. 342.) While the office of an innuendo may not be used to extend the alleged libel beyond its import it may be used “ to explain the application of words by connection with such facts and circumstances as are alleged.” (Woodruff v. Bradstreet Co., supra, p. 221.) The defendants’ letter characterized plaintiff’s obligation as “ a just debt ” which he had “ been given every opportunity to pay * * * in small payments, without results,” and it asked assistance from plaintiff’s employers “ in the interest of * * * fair treatment. ” - If by the pleading of extrinsic facts and special damages and the legitimate use of an innuendo, any or all of these may serve to state a cause of action,. I think plaintiff should have that opportunity. I favor an affirmance of the order and judgment appealed from, with the modification aforesaid, contingent upon plaintiff’s payment of costs in the court below and here.
Hill, P. J., and Bliss, J., concur with Hefferxax, J.; Brewster, J„ dissents in opinion in which Soheftok, J., concurs.
Judgment and order reversed on the law, with costs, and the motion to dismiss the complaint denied, with ten dollars costs, with leave to respondents to answer within twenty days after service" of a copy of the order to be entered hereon. [See 268 App. Div. —- ]