
    Denis O'Leary, Appellant, v. The New York News Publishing Company, Respondent.
    
      JUbel — charge that a justice of the peace assaulted a prisoner who treated him with derision — it is libelous perse.
    A publication charging a justice of the peace with having assaulted a prisoner arraigned before him, because the prisoner treated him with derision and started to leave the court room, touches.the justice in both his individual and official character, and is libelous per se.
    
    
      Appeal by the plaintiff, Denis O’Leary, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 12th day of January, 1900, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Nassau Trial Term.
    
      Charles Lex Brooke, for the appellant.
    
      Delos McCurdy, for the respondent.
   Willard Bartlett, J.:

This is' an action for libel. The plaintiff is a justice of the peace in the town of North Hempstead. The publication of which he complains was an article in the New York Daily News, which purported to describe an occurrence in the plaintiff’s court upon the arraignment of one Michael O’Brien, a farm laborer, who “ had given the constable several rough and tumble fights on the way to-the court.” The article stated in substance that when arraigned before Justice O’Leary, O’Brien said : “ I don’t want any business-with the like of you,” and started to leave the room; that thereupon the justice told him to sit down, whereupon O’Brien stuck out his tongue in derision, and the justice, leaving the bench, grabbed him by the back of the neck.

The remainder of the article read as follows:

“ In the first round the prisoner wheeled around and landed on the judge’s jaw, causing him to see stars, but the judge was game, and returned with vigor, giving bis opponent a black eye.
“ In the second round the judge sent O’Brien reeling across a bench, and the spectators expressed their approval of the masterly way in which the court conducted his case. Then the judge sent O’Brien against, the stove, which upset, filling his opponent’s eyes with ashes.
“ ‘ Murder ! murder! ’ cried the prisoner. 'He’s put my eyes out. I’ve got enough. For God’s sake let me go.’
“ Then the judge ascended the bench, while the'constable picked up the prisoner and led him to the bar, rubbing his eyes with a big-bandana handkerchief.
“ ' I’ll fine you $ 10,’ remarked, the judge between short breaths, “ and if you are brought before me again I hope you will know enough to act in a decent manner.’
“ O’Brien paid the fine and promised to curb his temper in the future.”

Upon the conclusion of the evidence for the plaintiff, the learned counsel for the defendant moved for a dismissal of the complaint upon the grounds (1) that the article was not libelous per se; (2) that there was no evidence that it was published, and (3) that there was no evidencé that it was published with malice.

■ As the answer admitted the publication of an article similar to the one set out in the-complaint and which the defendant alleged that it.believed to be the same article, the motion could hardly have been granted for want of proof that the article was published. Nor could the motion have been granted on the ground that there was no evidence that it was published with malice unless the court held that it was not libelous per se ; for if it was libelous per se its defamatory character would import malice. It is plain, therefore, that the action of the learned trial judge in dismissing the complaint must have been based upon the view that the language of the article was not actionable in and of itself.

With this conclusion we are unable to agree. The publication charged the plaintiff, while in the exercise of his functions as a jusbice of the peace, with having committed an assault upon a prisoner who stood arraigned before him. The fact that the prisoner had treated him with derision was no justification for a personal attack by the plaintiff; -nor was such attack justified or excused by the fact that the prisoner started to leave the room. According to the article the constable who had brought the juisoner. to court was present throughout the entire altercation, and nothing is stated in the" article disclosing the slightest necessity for any.effort on the part of the justice to detain 'the prisoner. On the contrary, the action attributed- to the plaintiff by this publication, if not palliated by facts which do not appear in the published statement, would warrant the removal of the justice from office.

In slander it is a general rule that words not actionable in themselves are not actionable when uttered of one in an office unless they touch him in his office. (Kinney v. Nash, 3 N. Y. 177.)This rule is invoked in behalf of the respondent in the present action, although the defamatory words complained of here were in writing. Assuming that it applies to libel as well as to slander,- there are two reasons why it cannot aid the defendant here. One is that the words published are actionable of themselves as relating to the plaintiff in his individual as distinguished from his official character, for the reason that they charge him with an offense against the criminal law, to wit, an assault; the other is that they do “ touch him in his office,” and, if true, would manifest his unfitness to hold it.

We think .that the language of the article published by the defendant was actionable per sé, and that it was error to dismiss the complaint.

All concurred.

Judgment reversed and new trial granted, costs to abide the event."  