
    James McIntyre, Respondent, v. The Journal Company, Appellant.
    
      Libel — charging a public officer with maladministration.
    
    The complaint in an action brought, to recover damage resulting from an alleged libel, among other things, alleged that the plaintiff, at the time of the publication of the article in question, and for six years prior thereto, had been the superintendent of the Albany County Penitentiary, where convicts were incarcerated and were employed in manufacturing industries under contract, made on behalf of the county of Albany by the plaintiff, who was required by law to deposit all moneys resulting from such contracts, after deducting his legal disbursements and expenses, with the county treasurer of Albany county; that the defendant, which published a newspaper,'had printed an article relative to the plaintiff which set forth the fact that the board of commissioners of the penitentiary had directed the county treasurer to transfer §70,000 from the earnings of the penitentiary to the credit of the county, and charged that the Albany penitentiary furnished a corruption fund which the Democracy of the city of Albany had used to debauch the electors of that city; that the plaintiff was the creature of a ring; that the Democracy fought to retain him because, in the event of his removal, they would be deprived of the means by which they had bought many elections; that it was a significant fact that so large a surplus was turned over to tlie county in 1895, while in 1894 the surplus was only 827,000; that there had been juggling with the accounts of tbs penitentiary, and that the cost of its maintenance in the past had been excessive and fictitious; that the plaintiff was generally believed to be a rich man, although he was not such when he went into office; that the whole prison system was rotten to the core, and that, therefore, his retention in office was desired in order to prevent shameful revelations and to hold control of the means which had provided a great corruption fund.
    
      Held, that a demurrer interposed to the complaint was properly overruled;
    That, considering the newspaper article as a whole, it was clearly libelous;
    That it, in effect, charged the plaintiff with having administered his office for unlawful purposes, with being a corrupt character, and ready and willing to continue and repeat a similar maladministration.
    Appeal by the defendant, The Journal Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 25th day of October, 1895, upon the decision of the court rendered after a trial at the Rensselaer Special Term overruling the defendant’s demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 23d day of October, 1895, overruling the said demurrer.
    The demurrer alleges that the complaint, which attempts to charge the defendant with publishing a libel, does not state facts sufficient to constitute a cause of action.
    The complaint alleges that the plaintiff, at the date of the publication of the article complained of in the newspaper published by the defendant, was, and for the six previous years liad been, superintendent of the Albany County Penitentiary, in which were and are incarcerated a large number of convicts whose labor is employed for gain in various manufacturing industries under contracts made by the plaintiff as such superintendent for tlie benefit of the county of Albany with the manufacturers, tlie plaintiff receiving tlie moneys tinder such contracts, which moneys, after deducting therefrom the disbursements and expenses allowed by law, he must deposit with the- treasurer of Albany county, his powers and duties in these respects being defined by chapter 261 of the Laws of 1885, which is referred to in the complaint for details.
    The complaint sets forth in full the alleged libelous article which the defendant is charged with maliciously publishing of and concerning the plaintiff.
    
      The article first sets forth resolutions of the hoard of commissioners of the penitentiary directing the county treasurer to transfer $70,000 from the earnings of the penitentiary to the credit of the county of Albany, and then proceeds :
    “.For years the Journal lias contended that the Albany Penitentiary was a gold mine that furnished the sinews of war and the corruption fund which the local Democracy has used to debauch the electors of this town. This explains why they fought so desperately to retain James McIntyre in office, for the removal of their creature from the superintendency of the institution means that they will be deprived of the means which caused them to buy so many elections.
    “ They are so desperate over this prospect that the public would not be surprised if they should resort to other measures to prolong their hold on the penitentiary. .Before this they have used the power of the court for iniquitous purposes, and it would not be strange if they should do it again.
    “ The figures contained in the above resolution are highly significant, and the question naturally arises, how does it come to pass that the penitentiary commissioners are able, in the spring of 1895, to turn over §70,000, when, in 1891, only a surplus of $27,000 was reported? Has the surplus ever before exceeded $30,000? In view of existing conditions, these inquiries are pertinent and may lead to an examination which will show conclusively why the desperate ringsters are so’ unwilling to give up their hold on this building.
    “ The Journal has contended time and again that there was juggling with the accounts of the prison. This seems to be indicated in the reports of the years 1875 and 1891. In these two years the number of prisoners in the penitentiary was the same. Yet, in 1875, when high prices were the rule, it cost only $75,000 to maintain the prisoners and §28,000 was turned in to the county. In 1891, with prices down to bed rock, it cost $100,000 to maintain the same number of prisoners, and only a surplus of $27,000 was reported. These figures indicate that .somebody was making a good thing out of the penitentiary, and it was not the taxpayers of Albany county either.
    “ It is generally believed that Superintendent McIntyre is a rich man, though, when he went into office, he was not burdened with an over-supply of this world’s goods. Did he make this money out of his salary? If lie made it out of the proceeds of the work of prisoners, he has done an illegal thing.
    “ The fact is, the whole prison system is rotten to the core, and to prevent shameful revelations, and at the same time retain hold of the means that has provided a great corruption fund, there is reason to believe that the ringsters will make a further fight.”
    
      Arthur L. Andrews, for the appellant.
    
      James W. Eaton, for the respondent.
   Per Curiam :

Construing this article as we think it would be understood by people generally (Turton v. N. Y. Recorder Co., 144 N. Y. 144), we have no doubt that it is libelous. It charges the plaintiff in substance and effect with maladministering' his office in the past for unlawful purposes, and with being such a corrupt character that he is ready and willing to repeat and continue the like maladministration, and so facile an instrument in the hands of certain “lingsters” that he is willing to prostitute his office to subserve their unlawful purposes.

We consider the article as a whole. It is so written as to leave the impression upon the mind of the reader that the plaintiff has been and still is an officer who has criminally abused and is willing to continue to abuse criminally his very responsible office.

The interlocutory' judgment is affirmed, with costs, with the usual leave to the defendant to answer upon payment of costs in this court and below.

All concurred, except Herrick, J., not sitting.

Order and judgment affirmed, with costs, with leave to the defendant to withdraw demurrer and answer within twenty days after service of a copy of this order and ujion payment of costs.  