The opinion
Jones, J.,
concurring in affirming the order vacating the order of arrest. Dissenting from affirming the order to make more definite.
If this action is sustainable at all, it must be on the ground that special damage has resulted ‘ from the writing of the words. Special damage then is the gist of the action. Being so, it must be laid in the complaint with particularity. A general averment of loss of customers will not suffice. The names of the customers who are alleged to have been lost must be given; and only the loss of the customers so named can be proved. If no customers are named, then no proof of special damage can be given, and the action fails (1 Stark. on Slan. 441; 2 Id. 62; 1 Chit, on Plead. 399 ; 2 Saund. on Pl. c& Ev. 800.
This doctrine appears to have been overlooked in the case of Shoe & Leather Bank v. Thompson, 18 Abb. Pr. 417 .
In the present case there is no sufficient averment of special damage, either in the complaint or any of the papers used in support of the order of arrest; there is, therefore, nothing to carry the case to a jury. The case, then, falls within that class of cases where the court will not uphold an order of arrest.
Again: the words complained do not of themselves import any injury to the plaintiff, nor do they afford any presumption, legal or otherwise, that their circulation is injurious. From aught that appears from the allegations of the complaint, the plaintiff’s mode of business, as stated by the defendant, was more beneficial to both stockholders and policy holders than that of any other company. Therefore, it does not appear that the *108 words could or did injuriously affect the plaintiffs’ business by deterring customers.
Consequently, an allegation that there were other companies who did business on a more favorable basis is essential.
The averment of special damage'does not supply the want of such allegation, because the facts alleged do not show such damages to be the direct and legitimate result from the words used.
If, however, the special averment does supply the want of such allegation, it is then clear that the special damages constitute the gist of the action.
For these reasons I think the order vacating the order of arrest should be affirmed, with ten dollars costs.
With regard to the motion' to make the complaint more definite and certain, the above views call for a reversal.
That motion is applicable only where one or more of the allegations which go to make out the cause of action is or are indefinite or uncertain. But it cannot be resorted to to compel the insertion of an averment which is necessary to make out the cause of action, or which changes the cause of action which the plaintiff insists on, or the grounds thereof on which he chooses to rely.
Flow, in this case there is no averment of special damage; and none can be proved (Herrick v. Latham, 10 Term R. 281).
If the plaintiff succeeds under his present complaint, it must be on the ground that the words are actionable per se. True, I think he cannot succeed on that ground ; but he has a right to differ from me and place his cause of action on that ground alone, and we cannot compel him to add another ground, nor to claim special damages if he does not desire to.
Order to make complaint more definite should be reversed, with ten dollars cost.