
    William Easton, Respondent, v. John F. Buck and Others, Appellants.
    
      Libel—-injury to business character — a publication, in parallel columns, of two letters by the same person, one exculpating and the other condemning the plaintiff.
    
    In an action based upon libel, a complaint setting forth, the publication in a newspaper of two letters, one dated December 12,1896, signed by two consignors of horses sold at a sale conducted by the plaintiff as president, auctioneer and sole manager of a corporation, in which the writers say that certain detrimental statements, which had been made in reference to the sale, “are as outrageous as they are false,” that they were at once paid a part of the proceeds to which they were entitled, and that “the balance was promptly settled; " and the other letter, purporting to have been written to one of the defendants by one of said consignors, dated December 26, 1896, and published in a parallel column Without comment, in which the writer says, “ Strange to say, I have not had my sale settled up as yet; I have not received one dollar out of it ” — this latter letter also containing other statements, not published, which fully exculpated the plaintiff from all blame in the premises — states a cause of action as, in spite of the statement contained in the first letter, the whole tenor of the publication justifies an inference, that the plaintiff in his business had failed to account for the proceeds of the sale which belonged to those whose goods had been sold.
    Appeal by the defendants, John F. Buck and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of May, 1897, upon the decision of the court rendered after a trial at tlfe New York Special Term overruling the defendants’ demurrer to the complaint, and also from an order entered in said clerk’s office on the 22d day of May, 1897, overruling the said demurrer, and directing the entry of the interlocutory judgment.
    
      Eliot Norton, for the appellants.
    
      J. Aspirmall Hodge, Jr., for the respondent.
   Ingraham, J.:

The action is for libel, based upon a publication in a newspaper published in the city of New York known as The Spirit of the Times. The libel consisted of the publication in parallel columns of two letters, one dated. December 12, 1896, signed by two individuals, viz., H. P. Headley and C. J. Enright. This letter referred to certain statements which had been published reflecting upon the plaintiff and the company of which he was an officer, and stated that such statements “ are as outrageous as they are false,” followed by-the statement, “ We were paid a large part of the proceeds at the close of our sale in Lexington, and the balance was promptly settled.”

The other letter purports to be one addressed to Mr. Buck, one of the defendants, which is dated December 26, 1896, fourteen days after the date of the first letter,, and which says: “ Strange to say, I have not had. my sale settled up as yet. I have not received one dollar out of it,” and signed by O. J. Enright. These two letters were published without comment. The complaint alleges that the plaintiff was, at the time mentioned in the complaint, the president, auctioneer, sole manager and agent of the Easton Company, a corporation organized under the laws of this State, and that the plaintiff and the said company have been for many years engaged in the business of selling, at private and public sale, thoroughbred and racing horses, and' of conducting very large public sales, at which the plaintiff, as the representative of the said company, is the recipient of large sums of money, which are payable to the consignors of horses, after deducting the commissions and charges of the said company ; that on or before the 3d day of December, 1896, in the city of Lexington, Kentucky, the plaintiff, as auctioneer and representative of the said company, conducted a large sale of thoroughbred horses, and that the proceeds of such sale, amounting to upwards of $100,000, were promptly accounted for to those whose property had been sold (among them to said Enright, who was a consignor of property sold at said sale), and paid over to them. • It is further alleged that the letter from Enright, dated December 26, 1896, one of those published, contained other sentences besides the two published, which modified and explained the said sentences as published, and fully exculpated the ¡plaintiff from all fault and blame in the premises, but that those other statements were not published.

There is a second cause of action alleging the publication of the second letter of December 26,1896, and asking to .recover damages for the libel contained in that letter. The demurrer is to the whole complaint, and the objection taken is that the complaint does not state facts sufficient to constitute a cause of action.

If one of the two causes of action was good, the demurrer was properly overruled. We think that the publication, as alleged in the first cause of action, was libelous per se, and .that the demurrer was properly overruled. The first letter printed in the parallel columns, and dated December 12, 1896, referred to the plaintiff’s action as conducting the sale of horses consigned to him by the persons signing the letter, and stated that they, the. writers of the letters, had been paid a large part of the proceeds at the close of the sale at Lexington, and that the balance was promptly settled. Annexed to this letter, and as a part of this publication, was a statement from one of those signing the first letter, that he had not had his sale settled up, and had not received one dollar out of it. The methods adopted by which .these two letters were published together made the reference to the plaintiff clear; and the second letter was a statement that the plaintiff had failed to account to the writer for the proceeds of the sale; and while with it was published a statement which was contradictory, the whole tenor of the publication was such as to justify an inference that the plaintiff, in the conduct of his business, had failed to account for the proceeds of the sale which belonged to those whose goods had been sold. The letter-charging that such proceeds had not been paid to those entitled to them, later in date than the letter acknowledging the receipt of the proceeds of sale, was clearly a charge that such proceeds had not been paid at the date of the later letter; and the mere fact that there is coupled with a publication making such a charge a statement which is contradictory of the charge does not make the publication containing the charge any less a libel. This letter amounts to a distinct affirmation that the plaintiff, as auctioneer or manager of a corporation, had conducted a sale prior to December twelfth, and that he had not settled up with the owners of property sold at that sale, and that the owner of a portion of the said property had not received one dollar of the proceeds of the sale.

It is well settled that words written or spoken, tending to injure a man in his trade or occupation, are actionable, and that, unless the defendant lawfully excused them, the injured party is entitled to recover without the allegation or proof of special damage. (Labouisse v. Evening Post Pub. Co., 10 App. Div. 30; Moore v. Francis, 121 N. Y. 199; Mattice v. Wilcox, 147 id. 632.)

We think, therefore, that this publication was libelous ; that the jiidgment was clearly right, and that it should be affirmed,, with costs.

Williams, Patterson and O’Brien, JJ., concurred; Yan Brunt, P. J.,-dissented.

Van Brunt, P. J.

(dissenting) :

I dissent upon the ground that, if any libel was uttered, it was against the Easton Company and not against the.plaintiff.

Judgment affirmed, with costs.  