
    Richard Rossiter, Respondent, v. The New York Press Company (Limited), Appellant.
    First Department,
    December 30, 1910.
    Libel — article charging one with holding a sinecure—pleading—setting forth article in full — failure to plead innuendo.
    The test in determining whether an article is libelous is whether or not its tenor and the language used naturally import a criminal or disgraceful charge to the mind of an intelligent man.
    It does not import anything criminal or disgraceful to' charge that a man has received money from the New York city treasury, or that his services as an expert witness were not worth what he was paid.
    Where a newspaper article stated that a number of sinecurists had been dropped from the city payroll and later stated that the plaintiff as an expert appraiser “ took from the city treasury §4,800 for his work,” but nowhere intimated that plaintiff was one of those dropped from the payroll, or that he was ever discharged, he cannot recover on the ground that the article charged him with having been discharged by reason of his incompetency and for fraudulent conduct. Even if the article did charge him with being removed from a sinecure, that is far from charging him with being removed for fraud and incompetency.
    A charge that plaintiff was one of a large number of unnecessary employees of the board of water supply whose positions were practically sinecures does not import a charge of participation in a conspiracy to cheat and defraud the city.
    Where in an action for libel the alleged libelous article is not pleaded with innuendo but is set out in full and annexed to the complaint, the pleading is demurrable if it appear upon reference to the article that the charges complained of were not in fact made and it is unnecessary to search the article for any libelous meaning not á subject of complaint.
    An alleged libelous article examined, and held, not to charge plaintiff with having conspired to cheat and defraud the taxpayers of New York city.
    Glabke, J. | dissentedi
    
      Appeal,by the defendant, The New York Press Company-(Limited), 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 11th day of Aulgust, 1910, upon the decision of the court i'eudered after a trial at the New York Special Term overruling the defendant’s demurrer to the complaint for insufficiency, in an action for libel. ' ■ i
    The alleged libelous article is as follows:
    “ Conkers Hard Hit About Water Graft.
    “Henchmen are dropped from snap Catskill Jobs.
    “ Many more are to go.
    “Almost $1,0003000 a Year will be saved jto city by Watson’s
    ■ Pruning.
    “The Democratic State Machine got a jolt yesterday through' Mayor Gayñor, and though State Chairman 6 Fingy ’ Conners, who is lighting for his. political life, was hard'hit, ¡there is said to be no political .significance in the dropping of several of his friends from graft jobs under the Board of Water Supply, the commission building the Catskill water system. Conners, as State'Chairman, was able to get places for his counsel, George B. ¡Dolson, of Syracuse, at $50 a-day, and his secretary, John T. Maharjof Albany, as a clerk at $200 a month. Both' men were among sevienty-nine siriecurists dropped off the payroll yesterday by Corporation Counsel Watson in compliance- with the lettepof Mayor Gaynor- last week directing that he take steps to cut down' the expenses of thej construction of the $161,000,000 water system.. . . • ' j
    “ Other victims of the pruning knife, wielded under the direction of the. Mayor, include Jacob A. Newsteajd, Republican leader of the Fourth Assembly District, Manhattan who was getting $20 a day as an appraiser; E. T. Williams of Niagaraj Falls, Stephen Ryan of Norwich, George B. Van Yaldenberg of Catskill and Wesley J. Springstead of Haverstraw, all members of tllie Democratic State Committee, placed by Conners. The removalj of these men, com.ing as it does when Conners is pressed to the yuill by his foes in the fight to-take from him the chairmanship ;of the State Committee, lias no relation to the political situation, and is ¡nothing more than a part of the Major’s purpose to out out the graft from the Catskill water project.
    “ There will be almost $1,000,000 a year saved by the operation when the final cutting is made. There are about fifty-eight soft snaps to be cut out yet,, and more than half of them will be wiped out before another two weeks.
    “ Corporation Counsel Watson said last night he expected to drop eight more men this week, and probably twenty next week. These men would all be dropped now but for the fact they pe all testifying in condemnation proceedings as appraisers, and it is not eXpedient to cut them off now. The graft jobs in the Catskill water systern have been appalling and are growing worse for two years, but Mayor Gaynor determined to kill them, and' the work only has begun.' The fact that men from almost every corner of the State, even from Vermont and New Jersey, have been drawing money from the Board of Water Supply, indicates the carnival of graft that had been going on under the McClellan administration.
    “ Few New York City men got in on it, as the game appears to have be.en controlled largely by up-State influences. The seventy-nine men dropped yesterday were rated as appraisers of real estate, of water power, of buildings or of quarries. None of them has any special qualifications for the work except the political backing.
    “ The secretary of 6 Fingy ’ Conners, Mahar, received $200 a month, but it is not shown he ever got closer to the Ashokan Dam than Albany. It was said the members of the Democratic State Committee, named and Jacob A. Newstead, Republican leader of the Fourth Assembly District, Manhattan, never bothered about going near the water works, but they collected fees. Although Corporation Counsel Watson was not willing to go into details as to the salary graft, he gave as a sample of the system, saying there were five appraisers' of water power and quarries on one section along the aqueduct, three of whom were paid $50 a day and the others $20 and $10. Why there should be five ‘ experts ’ receiving different salaries is one of the curious phases of the case.
    “ Corporation Counsel Watson kept one of.the $50 men and the $20 man, because he did not think it good policy to drop all of them ' out, inasmuch as the two men retained had proved their efficiency. One of the men dropped is Peter C. Nostrand of Manhattan, who drew $19,000 and the other is Walter S. Mortbn, also of this city, who drew $22,800. There was a man from Proctor, Vt., C. W. Maynard, who drew $6,300, and another by t ie name of Bichard Bóssiter of Paterson, B. J., who took from the city treasury $4,800 for his work. The reason for the appointment of these two men from otlier States is not clear, and the Corporation Counsel had no information on the Subject. j
    ' “ The Catskill region and the Sullivan County and Ulster County sections naturally benefited most by the grafi on the city. The gang of sappers of New York city taxpayers’- money was drawn from Buffalo, Schenectady, Oswego, Boches tei¡, Yonkers, Saugerties, Kingston, Cold Spring, Otisville and a score, of villages in the Catskill region. Throughout the last three years of the McClellan administration the‘hayseeds’had been feeding ion the city treasury without hindrance. j
    “ The exposure of this graft is only the beginning, for there are jobs passed upon by the up-State courts that arej to be eliminated in the same way which Mayor Gay nor is working out. Corporation Counsel Watson said he had taken steps to organize the work by placing William McMurtrie Speer, lawyer, of Bo. 157 Broadway, at the _liead of a staff organized in this borough, but of activities unconfined, to direct the work in future. .
    “ It was" directed by the Mayor in his letter to. the Corporation Counsel that the advertisements of the various" |condemnation pro-' ceedings be limited.to the smallest number of newspapers' possible.
    “ In reply to this the Corporation Counsel says he has taken steps to cut off the expense in that direction. If had been the practice to spend money recklessly in handing ’ but advertisements to small papers in the various counties along the line of the aqueduct, for which the taxpayers of this city have paid.
    “To compel the Condemnation Commissioners- to sit a full day for every day they charge the city $50, the Corporation Counsel says he has instituted-a time record system according to which it must be shown why each session has been adjourned in the stenographer’s minutes. Watson expects this will stop the practice of charging for a full day’s work for a session of one hour, or less. The joke the up-Staters have had on the city for three, years is about ended, and when Mayor Gaynor is in office the work of acquiriug property on the line of the aqueduct will be conducted at a minimum of expense.”
    
      Cornelius J. Sullivan, for the appellant.
    
      Stuart G. Gibboney, for the respondent.
   Miller, J.:

The plaintiff complains that the defendant falsely charged him (1) with having obtained $4,800 from the treasury of the city of New York; (2) with having rendered insufficient services for money paid to him for expert testimony which he had given in various condemnation . proceedings; (3) with having been in a conspiracy with others to cheat and defraud the taxpayers of the city of New York; (4) with having been discharged from his employment as an expert on land values from the service of the city of New York by reason of his incompetency in his said profession, and also for fraudulent conduct.

A copy of the alleged libelous article is annexed to the complaint, so we may look to it to see whether the plaintiff’s construction is justified. In determining whether an article is libelous, the test is whether to the min^l of an intelligent man the tenor of the article and the language used naturally import a criminal or disgraceful charge. (Church v. Tribune Association, 135 App. Div. 30; More v. Bennett, 48 N. Y. 472.)

It certainly does not import anything criminal or disgraceful to charge that a man has received money from the city treasury or that his services as an expert witness were not worth what he was paid. The first two charges, as above subdivided, may, therefore, be eliminated.

I can find no warrant for the assertion that the article charged the plaintiff with having been discharged for incompetency or fraudulent conduct. The only reference to. him is found in the paragraph relating to the five appraisers oh one section who received different salaries. But there can be no inference that he was one of 6 I them, because it is stated that two, who had proved their efficiency, were retained; that one of the men dropped was N, and that the other was M ; what happened to the fifth is not stated. The article then proceeds: “There was a man from Proctor, Vt., C. W. ■the city treasury inent of these two Maynard, who drew $6,300, and another by the name of Richard Rossiter, of Paterson, N: J., who took from $4,800 for his work. The reason for the appoin' •men from other States is not clear, and the Corporation Counsel had no information on the subject.” It is ndt stated when the plaintiff took the $4,800 for his work, whether lie still was employed by the city when the alleged exposure of graft wjas made, or that he Was ever discharged, much less that he was- discharged' for fraud or incompetence. In the first part of the articles it is said that seventy-nine sinecurists were dropped off the payroll, but it is nowhere stated-or even intimated that the plaintiff was-one of them. Even if it be. assumed that the article charges him | with having been removed from a sinecure, that is far from charging that the removal was for fraud or incompetence. Sinecures in one form or another have probably existed as long as organized society, bujt it has never been held, so far as we áre aware, that, the charge Ojf holding or being removed from a sinecure imports a charge of fraud or incompetence. If the word “ took ” might otherwise have had a sinister meaning, that meaning is plainly negatived by the words “for| his work ” at -the end of the sentence. The.fourth charge may, therefore, be eliminated as not being justified, and the tHird alone remains' to be considered, I .

The assertion that the1 article charges the plaintiff with being in a conspiracy with others to cheat ánd defraud -the! city seems to me altogether too far-fetched. The article as a whole is.an attack upon the creation of useless places and the unnecessary employment for political purposes of men styled “ henchmen ” hr connection with the building of the Catskill water system. Thes|e. places' are styled-“snap jobs,” “graft jobs,” “sinecures,” “soft snaps,”.. But so far as there is any suggestion of conspiracy in the article, if there- be such a suggestion,-it unmistakably refers to residents of this State, mostly up-State politicians, as it is said that “ the game ” was controlled largely by up-State influences, that “ fejw New York city men got in on it,” that the “ gang of sappers” was drawn.from'the places mentioned in this State, thus plainly negativing1 any inference that the man from Vermont and the plaintiff were either “henchmen” or members of the.“gang of sappers.” They are referred to only incidentally in the course of the article, and the only point in referring to them, as plainly appears from the article, is the circumstance that they reside outside the State, wherefore it was said that the reason of their appointment, was not clear.

The reference to the plaintiff is characterized somewhat by the following : “ The fact that men from almost every corner of the State, even from Vermont and Hew Jersey, have been drawing money from the Board of Water Supply indicates the carnival of graft that had been going on. * * * ” It may be that that implies that the employment of the plaintiff was unnecessary and even that his position was a sinecure, though the article distinctly states that the money taken by him was “ for his work/’ which certainly implies that he did something to earn it. The word “graft” is flexible and may mean a variety of things. Its meaning in this article is unmistakable, as it plainly refers to the salary paid the so-called “sinecurists.” It may be arguable that the article charges the plaintiff with being one of a large number of unnecessary employees of the board of water supply whose positions were practically sinecures, but that does not import a charge.of a conspiracy to cheat and defraud.

Of course, if the plaintiff’s construction is permissible, the question is for the jury. (Morrison v. Smith, 177 N. Y. 366.) But we are unable to find any basis whatever for it. It is to be observed that the article is not pleaded with innuendo, in which case, even though the innuendo be not justified, the-complaint may be sustained if the article is susceptible of any libelous meaning. The plaintiff has seen fit distinctly to plead what he complains of and to annex the libelous article .to his complaint. He does not thereby enlarge his complaint, but he made it demurrable if, upon reference to the article, it appears that the charges complained of by him were not in fact made. It is unnecessary, therefore, to search the article for any libelous meaning not complained of. I do not suggest that such meaning can be found, for I think that the worst view of the. article, so far as the plaintiff is concerned, is that it charges him, as he alleges, “ with having rendered insufficient service for money paid to him for expert testimony” which he has given in various condemnation proceedings. He states in his complaint that he had been engaged in the business of purchasing lands for reservoir purposes, mountainous, forest and otherwise, and by reason thereof had become acquainted with the values thereof] and had at various ■ times been called to testify in various-legal proceeding's as an expert on values of such property. As already said, tjhat charge does not import anything disgraceful or criminal. <

The interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the respondent to plead over on payment of costs. .

Ingraham, P. J., Scott and Dowling, JJ., concurred; Clarice, J., dissented. :

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