sary to make a libel. It is enough if the defendant induce a bad opinion to be had of the plaintiff, or make him contemptible or ridiculous. White v. Nicholls, 3 How. 266, 11 L. Ed. 591. To allow the press to be the vehicle of malicious ridicule of private character would soon deprave the moral taste of the community, and render the state of society miserable and barbarous. Cooper v. Greeley, 1 Denio, 359. To say falsely that one has met with poverty or wealth is not to reflect upon character or reputation, unless money be the measure of merit, which we know it is not, and yet these statements may be so made as to be libelous.

In Moffatt v. Cauldwell, 3 Hun, 26, we find it stated:

"Mere poverty ought not to expose any citizen to ridicule. But the proposition that ridicule is a non sequitur from such an imputation is not universally true. One may be so circumstanced and the fact of his alleged misery so put as to excite ridicule, and nothing else. Neither is wealth a crime. Yet a poor man may be held up to ridicule by a false and malicious account of his sudden, though perfectly honest, acquisition of fortune. The inquiry is, then, into the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at." Cited, also, in Battersby v. Collier, 24 App. Div. 89, 48 N. Y. Supp. 976.

* *

Where a college professor was the subject of a sportive article on his struggles with poverty, it was claimed that, as poverty was no disgrace, the ridicule was not actionable, but the court said:

"If the tendency of a written or published article is to disgrace the plaintiff or bring him into ridicule or contempt, it is libelous per se."

And it was held that the statements regarding this professor's poverty

"hold him up before the public as ridiculous and tends to abridge his comfort by exposing him to ridicule; their tendency is to alter his station in society for the worse." Martin v. Press Pub. Co., 93 App. Div. 531, 87 N. Y. Supp. 859.

The case of Kirman v. Sun Printing & Publishing Co., 99 App. Div. 367, 91 N. Y. Supp. 193, passed upon the publication of preparation for a marriage celebration which did not take place because of the groom's absence. The opinion referred to the article as follows: "She (the bride-to-be) has been held out to the public as being the central figure or heroine, so to speak, of what is asserted to be an absolutely fictitious and absurd story. The article necessarily tends to her disparagement, and it holds her up to ridicule by making her the prominent figure in a pure fictitious narrative. The cast of the article presents a ridiculous set of circumstances."

In no one of the three cases above cited was the publication any reflection upon the reputation or character of the plaintiff; reputation was affected, if at all, only by the person being the object of a ridiculous story, perfectly consistent with honesty, integrity, and uprightness. "The principle," it is said in Morrison v. Smith, 177 N. Y. 366, 69 N. E. 725, "upon which the rule of legal liability for damage rests is that no man possesses the right to lessen the comforts or enjoyment of another, and that, when he does so deliberately, wantonly, and maliciously, it is prima facie evidence of malice, and he is bound to make compensation for the mischief occasioned."

To be the butt of a false story holding one up for public amusement and jibes is to lessen the comforts and enjoyments to which that person is entitled. Thus it was held in the famous case of Cook v. Ward, 4 Moore & Payne, 99, 6 Bing. Rep. 409, that to state that the plaintiff had been mistaken for the hangman was libelous, even though the plaintiff had previously related the joke about himself. Every joke which a man may be willing to relate about himself for the amusement of his acquaintances does not justify another in printing it. To publish of a living person that he is dead is not that sportive and thoughtless ridicule mentioned in Lamberti v. Sun Printing & Publishing Ass'n, 111 App. Div. 437, 97 N. Y. Supp. 694. It will be noticed that the opinion in that case is very guarded in saying that:

"Sportive and thoughtless ridicule that may beget laughter, that leaves the temporary victim unaffected in his reputation and his business is not necessarily libelous."

Unless there be a dispute as to the facts, the words are either libelous or not libelous, being a question of law for the court. Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354, 5 L. R. A. 555. An amusing incident may be so harmless that the courts can easily determine that no injury has been done the person who may be the subject of it, but yet no one can be held up in a false print for the public amusement to his annoyance and embarrassment without having an action for libel, even though the damage be slight. The ridicule in such a case is not sportive but libelous. The contempt implied in the ridicule the law does not strain to define or separate.

Careful search has failed to disclose any case in this state exactly in point, or holding it to be libel to falsely publish one's death. The nearest approach to it is Cady v. Brooklyn Union Publishing Co., 23 Misc. Rep. 409, 51 N. Y. Supp. 198. Here was published of a practicing dentist that he had committed suicide. This was held to be a libel and the case of McBride v. Ellis, 9 Rich. (S. C.) 313, is cited. This latter case is in point as the publication was of the plaintiff's death, and it was held to be libelous per se as it exposed him to ridicule. Both Newell on Libel and Slander, p. 48 (2d Ed.) and Odgers on Libel and Slander, p. 17, give this case as an authority. Certainly, in view of the revelations made by science and the medical profession together with the regulations now imposed upon the sufferer, the case of Rade v. Press Publishing Co., 37 Misc. Rep. 254, 75 N. Y. Supp. 298, holding that it is no libel to publish of a person that he has consumption, cannot be considered the law.

The demurrer interposed herein is overruled, with costs.

THAM v. CARROLL.

(Supreme Court, Appellate Division, Fourth Department. November 15, 1911.) LANDLORD AND TENANT (§ 139*)-EVICTION-RE-ENTRY FOR GROWING CROPSPAYMENT OF RENT.

A lease of a farm at a rental payable at the end of every six months, providing that the lessee might sow a certain quantity of grain to be harvested after expiration of the term, having provided that, without charge and without liability of any one to the tenant for damages, C., who was operating a quarry on part of the farm, might use such parts of the farm as he might require for carrying on the quarrying, for any purpose or use necessary or incidental to the business, the making of improvements by C., incidental and essential to the improvements of the quarry, though rendering untenantable 30 or more acres of the farm, not only did not constitute an eviction of the lessee, who, after such improvements were made, paid rent for six months, and then, at the end of the next six months, left without paying the rent therefor, claiming only a right to reduction of rent, which was not conceded; but, even if they did amount to an eviction, they did not entitle him to re-enter and take away the growing grain without paying the rent which accrued while he was in possession and before he left.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 492-507; Dec. Dig. § 139.*]

Kruse, J., dissenting.

Appeal from Trial Term, Erie County.

Action by Martha Tham against Samuel S. Carroll. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Charles Oishei, for appellant.

George Clinton, Jr., for respondent.

SPRING, J. The plaintiff, the assignee of Anton Tham, the tenant of the defendant's farm in the town of Clarence, Erie county, has brought this action to recover damages for the conversion of a quantity of wheat and rye. Tham leased the farm of the defendant and entered into possession April 1, 1906, at a rental of $450 per year, payable semiannually at the end of each six months.

At the time the lease was made, Carroll Bros. were operating a quarry, as the lessee knew, on a part of the leased premises; and its further development would inevitably interfere to some extent with the tilling of the farm, and that condition was provided for by covenants in the lease as follows:

"The lessee further covenants and agrees with the lessor that the firm of Carroll Brothers, their heirs and assigns, may have the free use of such portions of the farm as they may from time to time require for the purpose of carrying on their business of stone quarrying, stripping earth from stone to be quarried, piling earth that has been stripped from the land to be used. for quarrying and for any other purpose or use which may be necessary or incidental to their business. The said Carroll Brothers may have the free use of any space now occupied or to be occupied by railroad tracks now or which may hereafter be laid and of any or all such space for the buildings now or which may hereafter be erected, moved or placed thereon, for the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

carrying on of their business or for the accommodation of their employés. The lessee further covenants and expressly agrees that in no event shall the said firm of Carroll Brothers or either of them individually, their executors, administrators or assigns, be held liable to the lessee for any damage to crops, animals, machinery or persons by reason of blasting or by or on account of any damage caused by any machinery, engine, boiler or apparatus used in their business or for or on account of any act or omission of their agents, servants or employés causing damage to the lessee."

In 1906 Carroll Bros. constructed a railroad track over a part of these premises, and another in the early part of 1907, piled dirt on some of the land, and made a driveway to the quarry. All these improvements were incidental and essential to the development of the quarry. Quite a tract of land, probably 30 acres or more, was rendered untenantable by these developments in connection with the excavation of the stone, and the plaintiff claims these acts were tantamount to an eviction of the leased premises.

We think the position untenable in view of the circumstances which appear in the record.

Three semiannual payments of the rent were made by the lessee in accordance with the agreement; the last October 1, 1907. The railroad tracks were then laid, the land flooded, and substantially all the acts committed which are now urged to sustain the claim of eviction. The lessee continued in possession of the premises in pursuance of the contract until April 1, 1908, when he abandoned them and without paying any part of the six months' rent then maturing. He complained to the defendant of the appropriation of the land and asked for a reduction in the rent of $50 a year, and quit before the negotiations were concluded on this subject.

When the lessee went into possession of the farm, there was a quantity of wheat growing thereon sowed by the preceding tenant and which he removed. By the terms of the lease the lessee was permitted to sow a like quantity of wheat to be harvested after the expiration of the term. The lessee sowed the wheat and rye and harvested the same in the summer of 1908, leaving the grain in the shock in the field, which he later attempted to thresh; but the defendant would not permit this until the rent accrued was paid. The defendant afterwards caused the grain to be stored in the barn on the premises. It is for the alleged conversion of this grain that the present action was commenced.

The only significance of the charge that the plaintiff's assignor was evicted from the leasehold property is to afford an excuse for reentering the premises and threshing and removing the grain without paying the rent. The lease may be somewhat harsh to the lessee in its provisions in allowing Carroll Bros. to appropriate land in the carrying on of the quarry without any redress by the lessee for damage to his crops. We can only construe the agreement as it is, which he seems to have entered into advisedly. All the substantial acts proven are within the explicit terms of the lease, and there is no proof that any of them were committed wantonly or for any other purpose than the carrying on of the business of stone quarrying. The lease is also definite and precise in exonerating the defendant and Carroll Bros. for any of these acts whether committed by themselves or their agents.

The lessee voluntarily surrendered the premises, failing to pay the rent, and thereby lost his right to the away-going crop. Gregg v. Boyd, 69 Hun, 588, 23 N. Y. Supp. 918.

His right to that crop depended upon his performance of the agreement. He could not abandon the premises, terminate the lease, refuse to pay the accrued rent, and still be entitled to the grain. The objection that the defendant made to the removal of the grain was that the rent must first be paid. If the lessee's title survived the abandonment of the premises, it surely was not enforceable when he or his assignee declined to pay the rent for the time he actually occupied the farm.

Even if he was justified in abandoning the premises and terminating the tenancy, he was not absolved from paying the semiannual installment which accrued before he left the farm for good. He could not re-enter and take away the growing grain until he had paid what was actually due. Even if the acts committed by Carroll Bros. were equivalent to an eviction, they did not relieve him from liability for rent accruing while he was in possession of the premises in pursuance of the lease. Failure to pay any installment of the rent when due by the provisions of the lease determined the term and avoided the contract.

The lessee remained in possession of the premises for a long period after the alleged invasion of the leasehold property. The rent was paid in October, 1907, which was subsequent to the important acts complained of. It is a serious question whether the payment of this rent money and the retention of the premises did not amount to a confirmation of the tenancy in spite of the acts of Carroll Bros. The right to abandon must be exercised promptly. Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109, 67 N. Y. Supp. 146; Kent v. Ward, 111 N. Y. Supp. 743; Heilborn v. Aaronson, 116 N. Y. Supp. 1096.

Before the lessee abandoned the premises, he did not contend that Carroll Bros. in any way overstepped the provisions of the lease. The complaint was that the rent was too high, not that the taking of the land for the operation of the quarry was in violation of the lease or a transgression of his rights. Apparently that suggestion was of later origin and in order to aid him, or his assignees, in getting the value of the grain without paying the rent already due.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur, except KRUSE, J., who dissents in an opinion.

KRUSE, J. (dissenting). The question is over the ownership of 32 acres of wheat and five acres of rye. The action is in conversion, and the trial court directed a nonsuit. The plaintiff appeals.

The plaintiff's assignor leased of defendant the farm upon which the grain was grown, but left it before the expiration of his lease and before the grain was matured and cut, and without paying the last half year's rent. After the lessee had left the farm, the defendant lessor permitted him or his assignee to cut the grain and shock it, and thresh a part of it, but prevented him from threshing the remainder