Rossiter v. New York Press Co.

Miller, J.: The plaintiff complains that the defendant falsely charged him (1) with having obtained $4,800 from the treasury of the city of New York; (2) with having rendered insufficient services for money paid to him for expert testimony which he had given in various condemnation . proceedings; (3) with having been in a conspiracy with others to cheat and defraud the taxpayers of the city of New York; (4) with having been discharged from his employment as an expert on land values from the service of the city of New York by reason of his incompetency in his said profession, and also for fraudulent conduct. A copy of the alleged libelous article is annexed to the complaint, so we may look to it to see whether the plaintiff’s construction is justified. In determining whether an article is libelous, the test is whether to the min^l of an intelligent man the tenor of the article and the language used naturally import a criminal or disgraceful charge. (Church v. Tribune Association, 135 App. Div. 30; More v. Bennett, 48 N. Y. 472.) It certainly does not import anything criminal or disgraceful to charge that a man has received money from the city treasury or that his services as an expert witness were not worth what he was paid. The first two charges, as above subdivided, may, therefore, be eliminated. I can find no warrant for the assertion that the article charged the plaintiff with having been discharged for incompetency or fraudulent conduct. The only reference to. him is found in the paragraph relating to the five appraisers oh one section who received different salaries. But there can be no inference that he was one of 6 I them, because it is stated that two, who had proved their efficiency, were retained; that one of the men dropped was N, and that the other was M ; what happened to the fifth is not stated. The article then proceeds: “There was a man from Proctor, Vt., C. W. [344] ■the city treasury inent of these two Maynard, who drew $6,300, and another by the name of Richard Rossiter, of Paterson, N: J., who took from $4,800 for his work. The reason for the appoin' •men from other States is not clear, and the Corporation Counsel had no information on the subject.” It is ndt stated when the plaintiff took the $4,800 for his work, whether lie still was employed by the city when the alleged exposure of graft wjas made, or that he Was ever discharged, much less that he was- discharged' for fraud or incompetence. In the first part of the articles it is said that seventy-nine sinecurists were dropped off the payroll, but it is nowhere stated-or even intimated that the plaintiff was-one of them. Even if it be. assumed that the article charges him | with having been removed from a sinecure, that is far from charging that the removal was for fraud or incompetence. Sinecures in one form or another have probably existed as long as organized society, bujt it has never been held, so far as we áre aware, that, the charge Ojf holding or being removed from a sinecure imports a charge of fraud or incompetence. If the word “ took ” might otherwise have had a sinister meaning, that meaning is plainly negatived by the words “for| his work ” at -the end of the sentence. The.fourth charge may, therefore, be eliminated as not being justified, and the tHird alone remains' to be considered, I . The assertion that the1 article charges the plaintiff with being in a conspiracy with others to cheat ánd defraud -the! city seems to me altogether too far-fetched. The article as a whole is.an attack upon the creation of useless places and the unnecessary employment for political purposes of men styled “ henchmen ” hr connection with the building of the Catskill water system. Thes|e. places' are styled-“snap jobs,” “graft jobs,” “sinecures,” “soft snaps,”.. But so far as there is any suggestion of conspiracy in the article, if there- be such a suggestion,-it unmistakably refers to residents of this State, mostly up-State politicians, as it is said that “ the game ” was controlled largely by up-State influences, that “ fejw New York city men got in on it,” that the “ gang of sappers” was drawn.from'the places mentioned in this State, thus plainly negativing1 any inference that the man from Vermont and the plaintiff were either “henchmen” or members of the.“gang of sappers.” They are referred to only incidentally in the course of the article, and the only point in [345] referring to them, as plainly appears from the article, is the circumstance that they reside outside the State, wherefore it was said that the reason of their appointment, was not clear. The reference to the plaintiff is characterized somewhat by the following : “ The fact that men from almost every corner of the State, even from Vermont and Hew Jersey, have been drawing money from the Board of Water Supply indicates the carnival of graft that had been going on. * * * ” It may be that that implies that the employment of the plaintiff was unnecessary and even that his position was a sinecure, though the article distinctly states that the money taken by him was “ for his work/’ which certainly implies that he did something to earn it. The word “graft” is flexible and may mean a variety of things. Its meaning in this article is unmistakable, as it plainly refers to the salary paid the so-called “sinecurists.” It may be arguable that the article charges the plaintiff with being one of a large number of unnecessary employees of the board of water supply whose positions were practically sinecures, but that does not import a charge.of a conspiracy to cheat and defraud. Of course, if the plaintiff’s construction is permissible, the question is for the jury. (Morrison v. Smith, 177 N. Y. 366.) But we are unable to find any basis whatever for it. It is to be observed that the article is not pleaded with innuendo, in which case, even though the innuendo be not justified, the-complaint may be sustained if the article is susceptible of any libelous meaning. The plaintiff has seen fit distinctly to plead what he complains of and to annex the libelous article .to his complaint. He does not thereby enlarge his complaint, but he made it demurrable if, upon reference to the article, it appears that the charges complained of by him were not in fact made. It is unnecessary, therefore, to search the article for any libelous meaning not complained of. I do not suggest that such meaning can be found, for I think that the worst view of the. article, so far as the plaintiff is concerned, is that it charges him, as he alleges, “ with having rendered insufficient service for money paid to him for expert testimony” which he has given in various condemnation proceedings. He states in his complaint that he had been engaged in the business of purchasing lands for reservoir purposes, mountainous, forest and otherwise, and by reason thereof [346] had become acquainted with the values thereof] and had at various ■ times been called to testify in various-legal proceeding's as an expert on values of such property. As already said, tjhat charge does not import anything disgraceful or criminal. < The interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the respondent to plead over on payment of costs. . Ingraham, P. J., Scott and Dowling, JJ., concurred; Clarice, J., dissented. : Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend -on payment of costs.-