
    Thomas A. Church, Respondent, v. The Tribune Association, Appellant.
    First Department,
    December 3,1909.
    ■ Libel — publication not libelous per se—neglect of duty.
    The test as to whether or no an article is libelous per se depends upon whether to the mind of an intelligent man the tenor of the article and the language used naturally import a criminal or disgraceful charge.
    A newspaper article which in substance states that a city magistrate complained that he was unable to open his court at the appointed hour by reason of the unexplained absence- of the plaintiff and other clerks, does not. charge moral delinquency or disreputable conduct so as to be libelous per se. Such article does not .charge habitual neglect of duty so as to be libelous per se, although the magistrate is said to have stated that the court was “ again to-day” without' any help.
    
      It seems, that it may be libelous per se to charge a person with the commission of a -single act amounting to moral delinquency or disreputable conduct.
    Houghton, J., dissented.
    Appeal by the defendant, The Tribune Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the .county, of Hew York on the 19th day of July, 1909, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the complaint.
    
      Henry W. Sackett, for the appellant.
    
      Saul E. Rogers, for the respondent.
   Scott, J.:

Defendant appeals from an interlocutory judgment overruling its demurrer to the complaint. The. action is for libel and is based iipon an article published- in defendant’s newspaper reading as follows:

Clerks Hold Up Court.
“ Magistrate and Prisoners Wait While Clerical Staff Takes
Holiday.
“Magistrate Breen found no clerks at the West Side Police-Court when he arrived there yesterday morning ready to convene court at 9 o’clock, and it was 10:30 before substitutes could be obtained. Meanwhile forty ■ policemen, with two-score prisoners, were obliged to stand around waiting for some one to make out complaints.
“ Magistrate Breen was highly incensed when no.clerks appeared. He finally telephoned to Secretary Block of the Board of Magistrates and asked for an explanation. Mr. Block replied that four clerks had been assigned to the West Side Police Court as usual, and added that he was totally unable to account for the non-appearance of the men. He said he would send substitutes at once.
“ While waiting for the substitute clerks to arrive Magistrate Breen became more and more exasperated as the business of the court began to accumulate. Calling the newspaper men around him he said:
“ ‘ I do not consider such a condition of affairs a trifling delinquency by any means. Here we are again to-day without any help at all-and no word to explain the absence of these men. It is only fair to say, in regard to the chief clerk, that while burying his mother yesterday his wife died, and, under these circumstances, I did not expect him to be here. I cannot understand in the least, however, where the other clerks are. The safe is locked and no one knows the combination, and it is impossible to obtain the examination papers. I have telephoned to the secretary of the Board of Magistrates and he says he will send us two men at once, but we have no interpreter and there was no interpreter here yesterday.’
“ When the two substitute clerks finally appeared they found' a heavy task before them. Hone of the regular clerks appeared while court was in session and the reason for their absence remained unexplained. Ho one except Charles Anthes, the chief clerk, had asked for or obtained leave of absence. The missing men were Peter Leekler, Edmund Davis, Thomas Church and Saul Dubliner. The latter was the interpreter.
“ The whereabouts of the different men will be investigated by the Board of- Magistrates at its next meeting.”
The language of the article is, of course, to be read and construed fairly and naturally, and the test whether it is or is not libelous per 56.is' whether to the mind of an intelligent man the tenor of the article and the language used naturally import a criminal or disgraceful charge. (Ertheiler v. Bernheim, 37 App. Div. 472.) Thus read the article quoted above amounts to no more than .a charge that on one occasion the city magistrate was unable to open the West Side Police Court at tlieappoin ted hour because the plaintiff and certain other clerks of the court were late or absent. This certainly fell far short of accusing plaintiff, óf anything criminal or disgraceful. At the most it charged him only with inattention to his duties, and this On but a single occasion. - This cannot fairly be said to amount to an imputation of' moral delinquency or disreputable conduct. It is true that it. has been held to be libelous per se to accuse a public officer of habitual neglect of duty (18 Am. & Eng. Ency. of Law [2d ed.], 950), but no case, so far as we are aware, has gone so far as to hold that a charge of having once neglected a duty is libelous, nor, even if we give the fullest possible weight to the use of the word “ again,” which the article quotes the magistrate as using, do we find this article to be the equivalent of a charge of habitual neglect. Of course it may be libelous to charge a person with but a single commission of an act if that act itself amounts to or imports moral delinquency or disreputable conduct. Such were the acts charged to the respective plaintiffs in O’Shaughnessy v. Morning Journal Assn. (71 Hun, 47) and Flaherty v. N. Y. Times Co. (109 App. Div. 489). Such is not the act charged against plaintiff in the article complained of. The judgment must be reversed, with costs, and the' demurrer sustained, with • costs, with leave to plaintiff to amend his complaint within twenty days upon payment of such costs.

Ingraham, McLaughlin and Laughlin, JJ., concurred; Houghton, J., dissented.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  