
    Clark v. Anderson.
    
      (Superior Court of Buffalo, General Term.
    
    November 8, 1890.)
    Libel and Slander—What Actionable—Injuring Plaintiff’s Business.
    A complaint for libel alleged that defendant composed and published concerning plaintiff, an attorney at law, a letter to the National Temperance Society, which stated that another person and plaintiff were conspiring to swindle defendant out of money, and continued: “I do not think you would be a party to any such rascality if you knew it, and do not think the National Temperance Society can afford to take money not their due, under or through the help of blacklegs or scoundrels, through false representations or swearing. ” Held, that it was for the jury to say whether these words had “a tendency to injure” plaintiff “in his business or occupation, ” within the meaning of Pen. Code N. Y. § 242, defining a libel.
    Appeal from trial term.
    Action by William H. Clark against Albert Anderson for libel. From a judgment on a verdict for defendant directed by the court, plaintiff appeals.
    Argued before,Titus and Hatch, JJ.
    
      A. M. Thomas, Jr., for appellant. Stephen Lockwood, for respondent.
   Titus, J.

The question here presented arises on an order made at the trial1 term directing a verdict for the defendant, and dismissing the complaint, on-the ground that the words used in the plaintiff’s cemplaint concerning the plaintiff are not libelous. The plaintiff is an attorney at law, engaged in the-practice of his profession in this city. The complaint alleges that the defendant maliciously composed and published a letter concerning the plaintiff to-the Rational Temperance Society & Publication House of New York City, in which it was stated that W. H. H.’ Bertram and this plaintiff were conspiring together to swindle the defendant out of some money, “and I do not. think you would be a party to any such rascality if yon knew it, and do not think the Rational Temperance Society can afford to take money not their due, under or through the help of blacklegs or scoundrels, through false representations or swearing.” On the opening of the plaintiff’s case, the trial court directed a verdict in favor of the defendant, and ordered the exceptions to be beared in the first instance at the general term. A libel is declared by the-Penal Code (section 242) to be “a malicious publication by writing, printing, picture, effigy, sign, or" otherwise than by mere speech, which exposes any living -person * * * to hatred, contempt, ridicule, or obloquy, * * *• or which has a tendency to injure any person * * * in his business or occupation.” Measured by the standard, it does not seem possible to escape-the conclusion that the question should at least have been submitted to the jury whether the effect of the language was such as to bring it within the-purview of the statute. The language used may be susceptible of an innocent construction, which it is well settled is for the jury to determine. Sanderson v. Caldwell, 45 N. Y. 398; Moore v. Francis, 121 N. Y. 199, 23 N. E. Rep. 1127. If the words are meant to apply to the plaintiff, they certainly seem to have a “tendency to injure him in his business or occupation.” At,all events, a jury may put such a construction upon them as would bring them within the statutory definition of libel.

It was not necessary for the plaintiff in his complaint to set out extrinsic facts for the purpose of showing the application of the defamatory matter to-the plaintiff, but"he may state generally what was published concerning him;, and, if the allegation is controverted, he must establish it on the trial. Section 535, Code Civil Proc. In Byrnes v. Mathews, 12 N. Y. St. Rep. 74, (decided by this court,) in which all of the judges took part and wrote opinions, the question of what constituted libel was so fully discussed and variously stated that it seems hardly necessary to repeat the arguments here. It is sufficient to say that, while the words in that case did not charge the plaintiff with a criminal offense, it was the unanimous opinion of the court that the complaint was not demurrable, and that the case would have to be submitted to the jury. The cases bearing upon the question were there collated, and their application to the facts commented upon at great length; and, from the rule there followed, it is difficult to see how the conclusion can be escaped that the question must be submitted to the jury for determination. We are therefore of the opinion that the verdict and order of the trial court must beset aside, and a new trial ordered, with costs to abide the event of the action.

Hatch, J.,

concurs, for the reasons stated and upon the authority of Morey v. Association, 25 N. E. Rep. 161, 1 N. Y. Supp. 475.  