
    George Hartmann, Appellant, v. The Sun Printing and Publishing Association, Respondent.
    
      Libel — what is not apharge that a butcher sold tainted meat — a charge that ‘ ‘ in each store tainted poultry was found” is not libelous.
    
    In an action of libel, based upon an article contained in the defendant’s newspaper, which was published in the city of New York, it appeared that the article stated that a butcher, not named,- had been selling horse flesh as beefsteak for 'six weeks; that the health board inspectors had made a tour of the west side butcher shops, and that as a result “ six marketmen were before Magistrate Deuel in the Jefferson Market Police Court yesterday, charged with selling tainted meat.”
    It further stated that one John Eann, not the plaintiff, was arrested, charged with having 600 pounds of horse flesh in his store, and that five persons named, of whom the plaintiff was one, were held for trial for a violation of the ordinance which forbids butchers to display meat in the street. The article concluded with the statement “in each store tainted poultry was found.”
    
      Held, that the article was not libelous per se;
    
    That no one reading the article would connect the six marketmen not named, who were charged with selling tainted meat, with the five butchers named, who were .charged with the violation of the ordinance forbidding meat to be displayed in the street;
    That the statement that “ in each store tainted poultry was found ” was not libel- . pus, in the absence of. an allegation that .such, poultry was sold or offered or exposed for sale.
    Appeal by the plaintiff, George Hartmann, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial-at the New York Trial Term.
    
      Benjamin Scharps, for the appellant.
    
      Franklin Bartlett, for the respondent.
   Ingraham, J.:

The complaint was dismissed at the end of the plaintiff’s case upon the ground that the article complained of was not libelous per se. The article charged that a butcher, not named, had been selling horse flesh as beefsteak for six weeks ; that the health board inspectors had made a tour of the west side butcher shops, and as a result “ six marketmen were before Magistrate Deuel in the Jefferson Market Police Court yesterday, charged with selling tainted meat.” It is then said that one John Rann was arrested for having 600 pounds of horse flesh in his store ; that he was held for trial under $300 bail; and that five persons named, of whom the plaintiff was one, were held for trial for a violation of an ordinance which forbids butchers to display meat in the street. The complaint alleges that by this article the defendant charged the plaintiff with having been guilty of a violation of section 50 of the Sanitary Code of the city of New York, and that he had been guilty of the offense of selling putrid, tainted, rotten and spoiled meat. At the trial it appeared that upon the day in question this plaintiff, with several other butchers, was charged before the magistrate with a violation of section 47 of the, Sanitary Code of the city of New York, which provides that “ no meat, poultry, game or fish shall be hung or exposed for sale outside of any shop or store in this city,, or any open place or doorways thereof,” and were held for trial for a violation of this ordinance and subsequenly were fined ten dollars each. This offense is the only offense which the article-in question stated that the plaintiff had been charged with. He was-not connected in any way with the previous statement that six marketmen had been charged with selling tainted meat. In fact, it was not stated that he was a marketman at all, and there was no connection in any way between the charge of selling tainted meat and the charge of a violation of the ordinance forbidding butchers to display meat in the street. No one reading this article would connect the six marketmen not named, charged with selling tainted meat, with the five butchers named, and charged with the violation of the ordinance. Nor do we think that the concluding statement, “ in each store tainted poultry was found,” is libelous. The statement of the fact that, in a butcher shop tainted poultry has been found does not charge the butcher with a crime, and was not relied on in the complaint or upon the trial as sufficient to sustain the action. Section 408 of the Penal Code provides that A person who, with intent that the-same may be used as food, drink or medicine, sells, or offers or exposes for sale, any article whatever which, to his knowledge, is tainted or spoiled or for any cause unfit to be used as. such food, drink or medicine, is guilty of a misdemeanor.” The fact that in a butcher’s shop there was found poultry or meat that had become tainted, when such poultry or meat was not sold or exposed for sale or intended for sale, would neither be charging a crime nor an offense of any kind. There is no allegation of special damage, and to sustain the action the- article must be libelous per se. Considering the whole article, it is quite clear that what the defendant intended to do was to give an account of a judicial proceeding before a magistrate in which this defendant, with others, had been charged with a violation of an' ordinance of the city of New York, and so far as this -defendant made any charge against this plaintiff liis own testimony shows the article to be true.

I think the court was justified in dismissing the complaint and that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Judgment affirmed, with costs.  