Foot v. Pitt

Willard Bartlett, J.: The only question presented by this appeal is whether the publication of which the plaintiff complains is libelous $>er se. In my opinion the language, when considered in its natural and ordinary meaning, is not defamatory and will not sustain an action for libel in the absence of an allegation of special damage. It does not charge the plaintiff with having done anything which he had not a legal right to do. The gravamen of the publication is that the plaintiff has endeavored to procure the enactment of a law which will relieve him of a sewer assessment and impose the cost of building a sewer for his benefit upon the taxpayers generally in the city of New Rochelle. Any citizen who sees fit to do so may lawfully endeavor [79] to procure such legislation. His conduct in so doing involves no moral turpitude, and the most unfavorable view that can be taken of it is that which is implied in the article in question, that it is a selfish proceeding and that the promoter is actuated by selfish motives. This characterization of the purpose of the plaintiff, however, does not bring the publication within any recognized ■ definition of a libel. The authorities are numerous to the effect that it is not libelous to charge a man with doing that which he may do lawfully. In Bennett v. Williamson (4 Sandf. 60) it was held by the Superior Court of the city of Hew York that it is not libelous to charge a man with having pleaded the Statute of Limitations, when there was no statement that he interposed the plea dishonestly. In People v. Jerome (1 Mich. 142) the complainant was a druggist and complained of a publication in these words : “ The above druggist in the city of Detroit refusing to contribute his mite with his fellow merchants for watering Jefferson Avenue, I have concluded to water said avenue in front of Pierre Teller’s store, for the week ending June 27th, 1846.” The Michigan Supreme Court held that this was not a libel, there being no obligation resting upon the druggist to join in the furtherance of the project for watering the street. In Homer v. Engelhardt (117 Mass. 539) the Supreme Judicial Court of Massachusetts held that it was not libelous to publish of a man that “ to get rid of a just claim in court, he set up as a defence the existing prohibitory liquor law.” The court said; “ This publication does not charge that the plaintiff falsely or even unsuccessfully set up as a defence the existing prohibitory law. The gist of the charge is simply that he did set up such a defence. The plaintiff having the right to make this defence, it is not libellous to publish the statement that he had done so.” In Goldberger v. Philadelphia Grocer Pub. Co. (42 Fed. Rep. 42) it was adjudged that a publication was not libelous per se which charged that plaintiff was not actuated by patriotism or love of his guild in soliciting subscriptions for a world’s fair from the tradesmen in his line of business, but that he was actuated by a desire to earn a salary of two dollars and fifty cents per day. Judge Shipman said that the action of the society which employed plaintiff and the action of the plaintiff himself were •legal and proper, and while the article was a sneer at the plaintiff it [80] said nothing which could properly dishonor or degrade or injure him in the estimation of his acquaintances or the public, or cause him to suffer loss in property, character, business, or in his social relations. In Urban v. Helmick (15 Wash. 155) the publication alleged to be libelous charged hotel proprietors with being “ hogs ” because they would not trade at home and build up the home trade and their own town as much as possible, but sent to another city for supplies. This was held not to be libelous per se, the court saying that it was not libelous per se to accuse one of being deficient in some quality ■ which the law does not require him as a good citizen to possess. These cases, and many others that might he cited, are opposed to ■ the contention of the plaintiff that the publication under consideration here is defamatory in the sense contemplated by the law of libel. The interlocutory judgi lent should be reversed and the demurrer sustained. Goodrich, P. J., Woodward, Hirsohberg and Hooker, JJ., ■concurred. Interlocutory judgment reversed, with costs, and demurrer sustained, with costs.