Keene v. Tribune Ass'n — 58 N.Y. St. Rep. 484

Majority

p. 484

Roswell W. Keene, App’lt, v. The Tribune Association, Resp’t.

(Supreme Court, General Term, First Department,

Filed March, 1894.)

Headnote

1. Appeal—Interlocutory .judgment.

An appeal does not lie from the order directing the interlocutory judgment.

2. Llbel—Trade or business.

Whatever words are calculated to prejudice a man, who seeks his livelihood by any trade or business, are actionable per se."

3. Same.

But it is not enough that the language tends to injure the person in his office, profession or trade ; it must be spoken in relation thereto.

The above entitled action was brought for the publication of the following alleged libelous articles in the New York Tribune of August 18 and September 6, 1884 :

“The Diamond Company, Limited.

“ An enticing circular has recently been sent to many business men of the city. It begins with the announcement that books for subscription to the capital stock of the Diamond Company, Limited, are opened, and the public are respectfully invited to absorb the shares, to the number of 20,000, at $100 each. The circular is signed by Roswell W. Keene, No. 280 Broadway, New York, and a written reference was made upon a copy which came to the Tribune to the American Loan and Trust Company, No. 113 Broadway. A reporter was sent to investigate the matter. Mr. Snow, who was in charge of the office of the company, upon being shown the printed circular and asked concerning it, said that some time ago he had been called upon by persons who said they spoke in behalf of the Diamond Company, Limited, and desired the institution over which Mr. Snow presides to become its financial agent. To this proposition a decided negative was given, and it was then suggested that the American Loan and Trust Company should receive the deposits of the ‘Diamond Company, Limited.’ To this Mr. Snow made response that it would be time enough to consider the matter when the deposits made their appearance at the receiving teller’s counter. Mr. Snow said further that' he never before, nor has he since, known anything of the persons of the enterprise, and ended his talk upon the matter with this summary of financial lore: 1 Moneyed institutions cannot safely indorse or recommend anything or anybody.’ He emphatically denied that the American Loan and Trust Company had in any way or to any extent become the financial sponsor of the 1 Diamond Company, Limited.’. An unsuccessful effort was then made to find Roswell W. Keene, whose office is in the Stewart Building, at Broadway and Chambers street. Mr. Keene was not in, and nobody connected with the building knew when he would be. Altogether the investigation did not result in a brilliant showing for a company of which the prospectus ‘ declares the capital stock to be $2,000,000 in 20,000 shares at $100 each,’ followed by this announcement: ‘ Subscribers are required to pay ten per cent, of

p. 485

the par value of each share subscribed for at the time of making such subscriptions.’ The business of the company is said to be ‘ the mining of diamonds and other precious stones, the cutting and working, the purchase and sale, the setting and the loaning of the same for the purpose of gain and profit and the cultivation of art, and the manufacture, purchase and sale of timepieces and jewelry generally.’”

‘•The Diamond Company, Limited.

“ Roswell W. Keene, who is endeavoring to promote the interests of the Diamond Company, Limited, with a capital of $20,000,000, says:”

Appeals from order of the special term directing judgment upon a demurrer, and from an interlocutory judgment dismissing the plaintiff’s complaint upon demurrer.

R. W. Keene, app’lt in person; Henry W. Sacketi (William A. McQuaid, of counsel), for resp’t.

The appeal from the order directing the interlocutory judgment must be dismissed, with $10 costs, there being no provision in the Code for any appeal from such an order.

The appeal from the interlocutory judgment brings up the sufficiency of the plaintiff’s complaint. It was an action to recover damages for an alleged libel. A demurrer was interposed, alleging as aground that it appeal’s upon the face of the complaint that it does not state facts sufficient to constitute a cause of action.

Two grounds in support of said demurrer are urged. They are, first, that there is nothing libelous per se in the publication complained off; and second that there is no adequate allegation of special damage.

Upon the part of the appellant it is not claimed that there is any adequate allegation of special damage, but it is claimed that such allegation is not necessary, and that the publication is libelous per se, because it refers to the plaintiff in his occupation, either as a lawyer or as a commissioner in the organizing of the corporation referred to in the article complained of.

There does not seem to be any dispute in regard to the law ; but the difference of opinion arises from the application of the well recognized rules of law to the facts alleged. There is no question but that “ Whatever words have a tendency to hurt, or bring ridicule and contempt on the plaintiff, or are calculated to prejudice a man who seeks his livelihood by any trade or business are actionable. When proved to have been spoken in relation thereto, the action is supported, and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage,” because both the falsity of the words and the resulting damages are presumed. Moore v. Francis, 121 N. Y. 204 ; 30 St. Rep. 467 . But the difficulty with the plaintiff’s case is that there is nothing in the article which shows that any part of the publication was made in respect to any trade or business in which the plaintiff was engaged. Where such is the

p. 486

case an innuendo cannot change or enlarge the plain meaning of words; and it is not enough that the language tends to injure the person in his office, profession or trade ; but it must be proven to have been spoken in relation thereto. Moore v. Francis, supra. As was said in Kinney v. Nash, 3 N. Y. 177 , it must touch him in his office, profession or trade.

A somewhat striking illustration of this rule is contained in the case of Van Tassel v. Farrington, 1 Johns. Cas., 130 , where the plaintiff was a justice of the peace, and sued the defendant because the latter called him a damned rogue. The plaintiff was non-suited upon the ground that these words, although spoken of a magistrate, had no relation to his official character or conduct, and were not actionable. In the case of Van Tassel v. Capron, 1 Denio, 250 , the declaration charged the speaking of the following words of the plaintiff in his character of justice of the peace: “There is a combined company here to cheat strangers, and Squire Yan Tassel has a hand in it; K. A. J. G. and Squire Yan Tassel are a set of damned blacklegs.” But the declaration did not show that the impuation was connected with the plaintiff’s official conduct, and it was held that they were not actionable.

It would therefore appear that the complaint was fatally defective, and that the judgment appealed from must be affirmed, with costs.

Follett and Parker, JJ., concur.

Cases cited

Kinney v. Nash 3 N. Y. 177 N.Y. p. 486