The first cause of action alleges that defendant NBC put on a television show called “21”. Defendants, who, in addition to NBC, were the sponsors and producers of the show, represented to plaintiff and the public that “ 21 ” was a quiz program conducted honestly and without prior rehearsal or assistance to any contestant. Plaintiff, in reliance on those representations, appeared on the program on April 14, 21 and 28, 1958. Actually, the program was not honestly conducted and, to the knowledge of defendants, information as to answers was given to certain contestants in advance. This fact was later discovered and became public knowledge. It is alleged that thereafter the public assumed from plaintiff’s appearance on the program that he was a participant in the fraud, which injured his reputation. It is further alleged that subsequently two applications for scholarships which plaintiff had made, one of which he had reason to believe would be awarded to him, were refused.
The question is whether these facts constitute a cause of action. Concededly they do not fall within any of the accepted categories. Neither libel nor slander can be claimed because no statement derogatory or otherwise concerning plaintiff is charged. Even though plaintiff was deceived by the implied representation that the program was honestly and fairly conducted, that deceit did not cause him any damage. What is alleged to have injured him is the unwarranted assumption by the public that, because plaintiff was a participant in a show which deliberately fooled the public, he was one of those who was misleading them.
It is undeniable that the action of the defendants in palming off this program as a bona fide contest and exaggerating the abilities of the favored contestants was a hoax on the public. But aside from inducing them to listen to the program it is *297difficult to see how any member of the public was injured or how anyone was defrauded. Naturally some persons would be resentful and form unfavorable opinions of the perpetrators of the hoax, including those who took part in the supposed contest. But it is quite another matter to assume that the public would form the same opinion of a person who appeared as a legitimate contestant.
Plaintiff’s claim is based on the contention that the public did not distinguish among contestants and wrongfully assumed that all were parties to the deception. If this contention is invalid, plaintiff has not shown that he suffered. If it is valid, he has not shown that any act or word of the defendants is responsible for the public’s false assumption. So what plaintiff apparently relies on is that the public is prone to accept guilt by association. It is submitted that neither these defendants nor anyone else should be held responsible for this human failing.
The majority rests its decision on the finding that this is an action on the case of a hitherto unspecified character. Undoubtedly at times new inventions as well as new customs give rise to injuries in a manner not before experienced. And the absence of precise precedent is no bar to recovery. Were this a situation peculiar to television, an argument could possibly be so based. However, the principles, and indeed the facts, have no peculiar relationship to television, except possibly in the extent of the exposure, which is here irrelevant. The exact situation could have arisen in a framework quite devoid of the factor of television. An old-fashioned spelling bee, or a tennis tournament or other athletic contest, would provide a factual background with the same legal consequences. In fact, the complaint seeks to equate the situation with the celebrated World Series Black Sox scandal, without however extending the analogy to the factual result which would negate recovery here, namely, that the innocent members of the guilty ball club continued in the sport without obloquy or any diminution in their popularity.
While an action on the case is designed to cover situations where a wrong has been committed and no existing remedy is provided for it (see Case, Action on, 14 C. J. S., p. 3) yet it is not entirely amorphous. There are some rules. It does not apply where conventional actions exist or where force, the usual damaging agent, is present (see C. J. S., op. cit., § 3). An action on the case may accrue from an injury to reputation, but only if the false utterance is made, maliciously with intent to harm *298the plaintiff (Al Raschid v. News Syndicate Co., 265 N. Y. 1; Penn-Ohio Steel Corp. v. Allis-Chalmers Mfg. Co., 7 A D 2d 441). No such element is here present.
Special Term regarded the action as one for defamation and hence barred by limitations. Whether it is so barred is not considered. On this appeal, contrary fo the stand taken below, plaintiff has discarded his description of defamation, and sper cifically negates that the action is in any category of defamation. This being so, limitations has no application. Had, however, the case appeared here in the guise which it assumed at Special Term, a very respectable argument, npt nqw necessary to consider, that the case is barred by the one-year Statute of ^imitations, could b,o made,
■The orders shoiild bo modified, on the law, so as to reverse the denial of that branch of defendants’ motions which sought a dismissal of the first cause of action for insufficiency and the motions granted and, as thus modified, the orders should fie affirmed.
Rabin and Várente, JJ., concur with Bbeiter, J. P.; Eager, J., disseqts in part in opinion; Steuer, J., dissents in opinion.
Orders, entered on October 2, 1963, November 15, 1963 and Deeepiber 5, 1968, so far as appealed from, modified, on tfie law, to the extent of denying defendants’ motions to dismiss the first cause of action, and, as so modified, affirmed, with $30 costs :an4 disbursements to abide the event. Settle order on notice.