In an action for libel, defendants appeal from an order denying their motion to dismiss the complaint for insufficiency.
The March 29, 1958 issue of the Saturday Evening Post contained an article entitled “ Don’4 Fall for the Mail Frauds.” *288The gist of the article is that Wonder Drug Corporation, through extensive newspaper advertisements, publicized a reducing drug described as 1 ‘ Regimen ’ ’ which allegedly made unnecessary the giving up of the kinds of food one likes to eat. However, states the article, in the container of ‘ ‘ Regimen ’ ’ are instructions warning the purchaser to avoid heavy gravies, oils, thick soup and a number of other types of food with high calorie content. The article then states that Wonder Drug Corporation voluntarily signed an affidavit of discontinuance as a result of an investigation by postal inspectors. It also observes that ‘ ‘ Regimen ’ ’ is still obtainable over the counter where the postal authorities have no jurisdiction but that the Federal Trade Commission which has jurisdiction over deceptive advertising has “ Regimen ” under investigation.
Whether or not a writing is defamatory is to be determined upon a fair reading of it. (Hays v. American Defense Soc., 252 N. Y. 266, 269.) Unquestionably the article does charge Wonder Drug Corporation with unfair . and fraudulent practices in advertising a drug effective in reducing weight when, in fact, the instructions accompanying the drug advise the avoidance of the food which the advertisement states may be eaten without restriction. There is nothing in the article, however, which charges the plaintiff with such advertising. The article does not name or describe the plaintiff and has no reference to plaintiff’s method or manner of manufacturing “ Regimen ”. Plaintiff, however, claims that it has been defamed by reason of the fact that it manufactures and distributes “ Regimen ” and has caused to be made hospital and clinical studies at great expense which establish the weight reducing effectiveness of “ Regimen ” which the article challenges and disputes. The fraudulent practices described in the article clearly have reference to Wonder Drug Corporation. It is not alleged that plaintiff is identified with that corporation. When defamatory matter identifies the person charged as one other than .plaintiff, the bare allegation that it was published of and concerning the plaintiff is of no legal effect. (Fleischmann v. Bennett, 87 N. Y. 231, 237; Corr v. Sun Print. & Pub. Assn., 177 N. Y. 131, 135-136; S. & R. Motors v. Gowens Motors, 207 Misc. 890, 893.)
This court recently held that where the plaintiff is neither named nor referred to in the defamatory matter he is obliged to allege special damages. (Stillman v. Paramount Pictures Corp., 2 A D 2d 18, 20.) It may be conceded that the article is critical of the product manufactured by the plaintiff. Nevertheless, the rule is clear that a libel of a manufactured article is not actionable unless plaintiff alleges and establishes special *289damages. (Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 390.) The complaint does not allege special damages with the required particularity. If loss of customers is claimed, they must be named; if persons refused to purchase, they too must be named. (Reporters’ Assn. v. Sun Print. & Pub. Assn., 186 N. Y. 437, 442.) In that case, the article in question was held to be libelous per se as to Newsboys’ Company and Newsboys’ Magazine but not libelous per se as to the plaintiff. As to the plaintiff, therefore, the court held that allegations and proof of special damages were necessary in order to sustain its cause of action. (See Rager v. McCloskey, 305 N. Y. 75, 81.)
Plaintiff’s reliance upon Vocational Guidance Manuals v. United Newspaper Mag. Corp. (280 App. Div. 593) is misplaced because there the article, although it did not name the plaintiff, was conceded on the argument of the appeal to have been published of the plaintiff. In the instant case, there is no such concession and so far as appears the corporation named, Wonder Drug Corporation, was an existing corporation separate and apart from plaintiff. '
The order appealed from should be reversed and the motion granted with leave to serve an amended complaint alleging special damages.
Botein, P. J., Breitel and M. M. Frank, JJ., concur in Per Curiam opinion; McNally, J., dissents in opinion in which Valente, J., concurs.
Order affirmed on the law, with $20 costs and disbursements to the respondent.