(dissenting). I agree that Advance Music Corp. v. American Tobacco Co. (296 N. Y. 79) is not controlling. There it was simply decided that in this State a cause of action exists for a willful injury causing temporal damage to another without justification or excuse whether or not such wrongful conduct fell within one of the generally accepted categories of tort liability. I also agree that this decision did not propose any change in the settled rules of pleading applicable to any recognized and clearly defined tort such as libel.
In the present case it is reasonably clear that the plaintiff is seeking to recover damages for a trade or business libel. Unless the alleged defamatory matter is libelous per se, it is necessary that special damages be pleaded.
The test as to whether something written concerning a merchant or tradesman in the conduct of his business is libelous per se is whether it affects the plaintiff in the way of his trade or business by directly tending to disparage and prejudice him therein (Ben-Oliel v. Press Publishing Co., 251 N. Y. 250; Moore v. Francis, 121 N. Y. 199; Odgers on Libel and Slander, p. 59).
I think that it was directly prejudicial to the plaintiff in the conduct of its business for the defendant to write to the plaintiff’s foreign customer that “ Contrary to your belief, they (meaning the plaintiff) do not have available either Export Licenses or Streptomycin and therefore, for this reason, it was impossible to conclude any business with them.”
Even without innuendo, this was a charge that contrary to the customer’s belief it would be impossible for the plaintiff to fulfill its commitments to deliver any of the drug which the plaintiff was endeavoring to sell to the customer. Thus, the defendant accused the plaintiff of deceitful dealing and misrepresentation. In my opinion this accusation was a business libel per se, and the complaint is sufficient without allegation of special damages.
*648Peck, P. J., and Dore, J.,, concur with Van Voorhis, J.; Cohn, J., dissents and votes to affirm on the authority of Advance Music Corp. v. American Tobacco Co. (296 N. Y. 79); Callahan, J., dissents in opinion.
Order reversed, with $20 costs and disbursements to the appellant and the motion granted, with leave to the plaintiff to serve an amended complaint within ten days after service of the order, with notice of entry thereof, on payment of said costs.