Keene v. Tribune Ass'n

VAN BRUNT, P. J. The appeal from the order directing the interlocutory judgment must be dismissed, with $10 costs, there being no provision in the Code for any appeal from such an order. The appeal from the interlocutory judgment brings up the sufficiency of the plaintiff’s complaint It was an action to recover damages for an alleged libel. A demurrer was interposed, alleging as a ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action. Two grounds in support of said demurrer are urged. They are (1) that there is nothing libelous per se in the publication complained of; and (2) that there is no adequate allegation of special damage. Upon the part of the appellant it is not claimed that there is any adequate aUegation of special damage, but it is claimed that such allegation is not necessary, and that the publication is libelous per se, because it refers to the plaintiff in his occupation, either as a lawyer or as a commissioner in the organizing of the corporation referred to in the article complained of. There does not seem to be any dispute in regard to the law, but the difference of opinion arises from the application of the well-recognized rules of law to the facts alleged. There is no question but that whatever words have a tendency to hurt, or bring ridicule and contempt on, the plaintiff, or are calculated' to prejudice a man •who seeks his livelihood by any trade or business, are actionable. Where proved to have been spoken in relation thereto, the action is supported, and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and the resulting damage are presumed. Moore v. Francis, 121 N. Y. 204, 23 N. E. 1127. But the difficulty with the plaintiff’s case is that there is nothing in the article which shows that any part of the publication was made in respect to any trade or business in which the plaintiff' was engaged. WThere such is the case, an innuendo cannot change or enlarge the plain meaning of words; and it is not enough that the language tends to injure the person in his office, profession, or trade, but it must be proven to have been spoken in relation thereto. Moore v. Francis, supra. As was said in Kinney v. Nash, 3 N. Y. 177, it must touch him in his office, profession, or trade. A somewhat striking illustration of this rule is contained in the case of Oakley v. Farrington, 1 Johns. Cas. 130, where the plaintiff was a justice of the peace, and sued the defendant because the latter called him a damned rogue. The plaintiff was nonsuited upon the ground that these words, although spoken of a magistrate, had no relation 1047 to his official character or conduct, and were not actionable. In the case of Van Tassel v. Capron, 1 Denio, 250, the declaration charged the speaking of the following words of the plaintiff in his character of justice of the peace: “There is a combined company here to cheat strangers, and Squire Van Tassel has a hand in it; K. A. J. G-. and Squire Van Tassel are a set of damned blacklegs.” But the declaration did not show that the imputation was connected with the plaintiff’s official conduct, and it was held that it was not actionable. It would therefore appear that the complaint was fatally defective, and that the judgment appealed from must be affirmed, with costs. All concur.