
    James J. Duffy, Respondent, v. New York Evening Post Company, Appellant.
    First Department,
    December, 1905.
    Libel—when criticism of a political character not libelous per se.
    A newspaper article which speaks of a Republican political candidate as “‘Koke’ Duffy. Absolutely devoid of any knowledge of the customs of polite men. * * * Devotes his time and energy more to assisting the Tammany leaders than to working for his own nominal party. * * * Apparently knows no more of and cares no more for political principles than he does of the Silurian age in geology. * * * A most unworthy choice,” is not libelous per se; and, when no special damage is alleged in the complaint on such alleged libel, a demurrer thereto should be sustained.
    Appeal by the defendant, the New York Evening Post 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 Hew York on the 24th day of April, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Terra, overruling defendant’s demurrer to the complaint.
    
      Lawrence Godkin, for the appellant,
    
      James A. Allen, for the respondent-
   Patterson, J.:

This is an appeal from an interlocutory judgment overruling a demurrer to the plaintiff’s complaint. The action is in libel, and the alleged defamatory matter was contained in an article published-in a newspaper, to wit, the New York Evening Post. It is alleged in the complaint, after setting forth that the defendant is a corporation and publishes and circulates a newspaper, that “ the plaintiff is and -for many years has been a resident of the Borough of Man-' hattan in the City of Hew York. Eor many years he has been and is a member and one of the leaders of the Republican Party in the City of Hew York, to which party and the policies, principles and interests thereof he has always been loyal, faithful and true, and as such he has taken a prominent and active interest in the politics of the City of Hew York and of the State of Hew York, and for many years has been, and is, actively and prominently identified with political affairs, movements and issues pertaining to and affecting1 the City of New York arid the State "of New York. The plaintiff is also and for mariy years has been engaged in and has carried on a large, extensive and lucrative contracting business, of which he is and for many years has bqen the proprietor, and which he has for many years conducted under his own name in the Borough of Manhattan in the City of New York; and in consequence of his affiliation through a long course of" years with the Republican Party and his active and earnest, participation in the affairs and policies thereof and in numerous 'political campaigns in the City of New York and in the State of New York, and also in consequence, óf the ownership and operation of his said contracting business he lias made a large number of friends and acquaintances and has become, and on the 25th day of August, 1904z was, widely and favorably known, respected and trusted in social, political and business circles-throughout the City of New York and other portions of the State of New York; and on the.25th day of August, 1904,- he held,/and for many years prior thereto had held, honorable,’ confidential and " responsible positions in the Republican Party in the. City of New York, and was by the leaders thereof highly respected and trusted as a loyal- Republican arid true to the principles- and interests of that party, arid was by them entrusted with a substantial part of the management of that party’s affairs; and on the 25th day of August, 1904, and for many" years prior thereto he has; enjoyed the respect, confidence arid esteem of the various persons with whom • he liad been for many years doing business, especially those persons engaged in the building trades in the City of New York:”" He then proceeds -to state that“ On or about the "25th day of August,. 1904, in the Borough of Manhattan in the City of New .York, the defendant composed, printed and published in the edition of the said f The Evening Post ’ dated August 25th, 1904, an article concerning the plaintiff in the following words:

Against Hai.pin et al.
Thomas J. Clarke put rip for Leader in the Ninth District.
“ ‘ Circulars are out in the Ninth Assembly District urging upon. Republican primary voters 6 a few words as to who áre dictating nominations in this district and managing" party affairs,.’ -as follows.: >
-“ ‘ William Halpin, temporarily acting as leader, though only of mediocre ability, surpasses the rest, and will be specially characterized later.
“‘John J. Plunkitt, formerly bartender for ‘Mike’ Curley on Tenth Avenue. ' Later became janitor and porter of the Local Club. Has a job as deputy sheriff by re-appointment óf a Tammany administration. Why ?
“ ‘ J arpes A. Allen, came into the district with a carpet bag arid has acquired property. Always obeys orders. Consult the files of the Evening Post and other reputable newspapers for his record.
“ ‘ Thomas L. Hamilton, personally a nice fellow but politically a light weight. Charity forbids expatiation.
“ ‘ James J. Duffy, the last and least of all. Known as ‘ Kolce ’ Duffy. Absolutely devoid of any knowledge of the customs of polite men. Does .well in business, especially during Tammany regimes. Devotes his time and energy more to assisting the Tammany leaders than to working for his own nominal party. Is reported to be about to join Tammany - openly soon. Apparently knows no more of and cares no more for political principles than he does of the siluiian age in" geology. Mixes in Tammany factional fights, to the detriment of the Republican Party. A most unworthy choice.
“ ‘ To vote for the above is to debauch the party. For decency, honesty and the welfare of Republicanism, vote for Thomas J. Clarke for leader and Henry Clinton Bachus, • W. Henry Godward, and other representative men of principle for county committeemen.’ ”

It is then alleged in the complaint: “ The said article was, by the defendant, unlawfully and maliciously composed, printed and published concerning the plaintiff as aforesaid on or about the 25th day of August, 1904, in the said edition of the said ‘ The Evening Post’ dated August 25th, 1904. The said edition of the said Tlie-Evening Post ’ dated August 25th, 1904, containing the said article was by the defendant on and about the 25th day of August, 1904, widely distributed and circulated throughout the City of Hew Y ork an d oth er portions of the State of H ew Y ork. By means of the said distribution and circulation of the said edition of the said ‘ The Evening Post ’ dated August 25th, 1904, containing the said article, the- said article w&s on and about the 25th day of" August, 1904, published and communicated to various readers of the said newspaper. The said article was, and is, and the import thereof was, and is, false,, malicibus, defamatory and libelous concerning the plaintiff. Through'the said publication of the said article as aforesaid the plaintiff has been, by. the defendant, exposed to public hatred, contempt, scorn, obloquy, shame and ridicule and has been thereby greatly injured in his-good name and reputation.”

The defendant demurred to the complaint on the ground that it did. not state facts sufficient to constitute a cause of action.

There is no allegation in the complaint of special damage, and the simple question is whether on the face of the complaint it may. be said as matter of law that the alleged defamatory matter relating to the plaintiff is. libelous yer se, or whether it is necessary that special damage should be pleaded to make it actionable.

It is to be observed at the outset that nothing is said-affecting the private character or the business of the plaintiff outside of political relations, and manifestly the case is not within Moore v. Francis (121 N. Y. 199).

I am unable to perceive that this article can be said, as matter of law, to hold the plaintiff up to scorn, ridicule or contempt as an individual or a private person. He does not claim to have been injured as such. He appears only as a public character and asserts that he has been and is actively and prominently identified with political affairs^ movements and issues; that he held and for many years has held honorable, confidential and responsible positions in the Eepublican party of the city of Hew York and was by the leaders thereof highly respected and trusted as a Eepublican and was by them intrusted with a substantial part of the management of the party affairs, Standing' in that attitude as a public character, his conduct and actions are of course open to criticism. To comment upon the acts or conduct of a public man is the right of every citizen. While every one is entitled to the protection of his reputation from slanderous remarks or libelous articles, whether he is a public or private character, yet it. appears in this case that the plaintiff was referred-to in the-article complained of only in the former relation. A written or printed statement published of and concerning a person which is false- and tends to injure his reputation and thereby expose him to public hatred, contempt, scorn, obloquy or shame, is undoubtedly- libelous per se. (Triggs v. Sun Printing & Pub. Assn., 179 N. Y. 153, and cases cited.) But the right of criticism of a public character remains and must be taken into account when the court is called upon to determine, as matter of law, whether an article which is evidently a criticism of the conduct and career of such a man is libelous per se. An article apparently inoffensive may do great injury to the person concerning whom it is written and under appropriate allegations in the complaint it would be for a jury to determine whether- such article were libelous or not; but where the question is presented, as here, simply upon a demurrer and starting with the conceded fact that what has been written and published of and concerning the plaintiff by the defendant relates to a public character, the question is whether the court can say upon an inspection of the article that it is libelous per se. Analyzing it, we find that it refers to the plaintiff by a “ nickname; ” that it states that he is Absolutely devoid of any knowledge of the customs of polite men. Does well in business, especially during Tammany regimes.” Thus far there is nothing libelous per se. The -article then proceeds to say that the plaintiff “ Devotes his time and energy more to assisting the Tammany leaders than to working for his own nominal party. ' Is reported to be about to join Tammany openly soon.” There is certainly nothing here from which the court can adjudge, on an inspection of the article, that the words are libelous per se. Taking these allegations together they cannot be said to be libelous per se any more than if it were said that a person professing a particular religious belief supports another with the intention of soon becoming a convert to that other faith. The article goes on further to say that the plaintiff “ Apparently knows no more of and cares no more for political principles than he does of the silurian age in geology,” a meaningless phrase which could not have affected the reputation.of the plaintiff, although its utterance may have gratified the literary vanity of the writer who composed it. It is also said of the plaintiff that he “ Mixes in Tammany factional fights to the detriment of the Republican Party.” That might be actionable if it were shown that his position, in the Republican party were in any way affected by such accusation. The article concludes with the statement that the plaintiff is. “a most unworthy choice.” In commenting upon a public man it cannot bé said that such a. remark surpasses the limits of permissible criticism.. "

The judgment appealed from should be reversed and the demurrer, sustained, with leave to the plaintiff to amend the complaint on payment of costs in this court; and in the court below Within twenty days after the service of an order to be entered upon this decision.'

Ingraham, Clarke and Houghton, JJ., concurred; O’Brien,P. J., dissented.

Judgment reversed and demurrer sustained^ with leave to plaintiff to amend on payment of costs in this court, and in the court below;  