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concealing his connection with it, and to avoid liability as a partner, caused a certain agreement, a copy of which is annexed to and made a part of the complaint, to be entered into on his behalf by the defendant Wolf with the plaintiff; that Wolf had no interest in the agreement, and in executing it did so solely for and merely as the representative of Baker, who, after its execution, assumed to act in place of Wolf; that the plaintiff duly performed all the terms and conditions of the agreement on his part to be performed; and that the defendant Baker had failed to perform. The judgment demanded is a dissolution of the partnership and an accounting, a sale of the partnership property, payment of the debts, division of the profits between plaintiff and Baker, and for an injunction.

The demurrer, of course, admits as true every fact set forth, as well as every fact that can be reasonably and fairly implied from those pleaded. Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 451, 51 N. E. 301; Triggs v. Sun Printing & Publishing Association, 179 N. Y. 144, 71 N. E. 739, 66 L. R. A. 612, 103 Am. St. Rep. 841; Sage v. Culver, 147 N. Y. 241, 41 N. E. 513; Milliken v. Western Union Telegraph Co., 110 N. Y. 403, 18 N. E. 251, 1 L. R. A. 281. Not only this, but, for the purpose of determining whether the complaint states a cause of action, its allegations must be liberally construed with the view of doing substantial justice between the parties. Code Civ. Proc. § 519. The demurrer, therefore, admits that the plaintiff and Baker did form a partnership; the conveyance of certain real estate by Baker to the plaintiff, the purchase price of which was charged to the partnership; that the title to such real estate, while nominally in the plaintiff, was in fact held by him for the benefit of the partnership; that in holding such title he acted as trustee and partner of Baker; the rendering of services by the plaintiff for the partnership; that Baker had diverted to his own use large sums of money, which belonged to the partnership, and which he had refused to return or account for; and that by reason of such diversion the plaintiff, in carrying on the partnership business, had personally advanced to it $16,000.

The facts which were thus admitted by the demurrer are not destroyed by the agreement alleged to have been entered into between plaintiff and Wolf. The purpose of this agreement, according to the allegation of the complaint, was to conceal Baker's connection with the partnership and enable him to avoid liability thereunder. I am of the opinion that the facts set forth in the complaint are sufficient to constitute a cause of action against the respondent.

For that reason, the judgment appealed from is reversed, with costs, and the demurrer overruled, with costs, with leave, however, to the respondent to withdraw his demurrer and answer, on payment of the costs in this court and in the court below. All concur.

PERLEY V. MORNING TELEGRAPH CO.

(Supreme Court, Appellate Division, First Department. April 8, 1909.)

1. LIBEL AND SLANDER (§ 42*)-PRIVILEGED COMMUNICATIONS-JUDICIAL PROCEEDINGS.

A fair and truthful statement of a judicial proceeding is privileged. [Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 127; Dec. Dig. § 42.*]

2. LIBEL AND Slander (§ 6*)—PUBLICATION.

Written words are libelous in all cases where, if the same words were spoken, they would be actionable.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 1; Dec. Dig. § 6.*]

8. LIBEL AND SLANDER (§ 9*)-WORDS RELATING TO BUSINESS SUCCESS.

A publication of a statement that plaintiff's shows had been closed by him because they were not successful, with nothing to impair confidence in plaintiff's character or business ability, is not libelous per se.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. § 80; Dec. Dig. § 9.*]

Appeal from Special Term, New York County.

Action by Frank L. Perley against the Morning Telegraph Company. From an interlocutory judgment overruling its demurrer to the complaint, defendant appeals. Reversed.

Argued before PATTERSON, P. J., and CLARKE, INGRAHAM, HOUGHTON, and SCOTT, JJ.

Thos. W. Churchill, for appellant.
Franklin Bien, for respondent.

INGRAHAM, J. The action is for a libel; the defendant being the publishers of a daily newspaper known as the "Morning Telegram." The complaint alleges that the plaintiff is a theatrical manager, and that the defendant caused to be published on December 14, 1907, an article which is set forth in the complaint. It was stated in that article that an action commenced by plaintiff against the Shubert Company had been decided against the plaintiff; that the plaintiff had decided to send his company over Shubert's circuit; that a contract was signed, under which each side was to forfeit $25,000 for a violation of its terms; that on the plaintiff's side he was restrained from booking any company with Klaw & Erlanger, and, on the other hand, the Messrs. Shubert were to supply routes for the plaintiff's companies; that the tours were brought to an end, and the plaintiff filed suit for $25,000, asserting that he was not provided with time; that the Shuberts claimed that the plaintiff's shows had been closed by the proprietor because they were not successful, and through no fault of theirs; and that the court trying the case affirmed the decision of the Appellate Division in the defendant's favor, and the plaintiff was ordered to pay the costs of the litigation. It is then stated in the complaint that the statements contained in said article were absolutely false, malicious, and untrue, in that it was stated in substance that there had been proof upon the trial of said action, on December 13, 1907, that

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Shubert had failed to carry out the contract, because the plaintiff had closed his productions by reason of the fact that they were not successful, and through no fault of the Shuberts; that the question of the plaintiff closing his productions was not gone into on the said trial. The complaint further alleges that the publication of these false, malicious, defamatory, and libelous statements has seriously interfered to a great extent with the various enterprises which the plaintiff had and was about negotiating prior to the publication of the aforesaid false, malicious, defamatory, and libelous statements contained in said article, and that the plaintiff has been damaged in the sum of $50,000.

It is quite clear that this allegation is not a sufficient statement of special damage, and the right of the plaintiff to maintain the action must therefore depend upon whether this publication is libelous per se. It was privileged, if it was a fair and truthful statement of a judicial proceeding; but the complaint alleges that it was not, in that the Shuberts had never made the claim that the plaintiff's shows had been closed because they were not successful. The only statement in this publication which can be claimed to be libelous per se is that the booking firm (the Shuberts) claimed that the Perley shows had been closed by the proprietor because they were not successful, and through no fault of theirs. The rule in relation to a publication affecting the plaintiff's business or profession is stated in Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105, as follows:

"When the words spoken have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff."

In Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810, the publication stated that the teller of the bank was mentally deranged. The court quoted the definition of actionable slander by Chief Justice De Gray in Onslow v. Horne, 3 Wilson, 177, that slanderous words are those "which tend to injure a party in his trade, occupation, or business," and, in speaking of this class of action, he said:

"The law allows this form of action, not only to protect a man's character as such, but to protect him in his occupation, also, against injurious imputations. It recognizes the right of a man to live, and the necessity of labor, and will not permit one to assail by words the pecuniary credit of another, except at the peril, in case they are untrue, of answering in damages."

He quotes with approval what was said in Whittake v. Bradley, 7 D. R. R. 649:

"Whatever words have a tendency to hurt, or are calculated to prejudice, a man who seeks his livelihood by any trade or business, are actionable;" that the same rule applies to an action to recover for a written or printed publication; and that written words are libelous in all cases where, if spoken, they would be actionable.

The utmost that can be said about the defendant's publication is that it is an allegation that the plaintiff's shows had been closed by him.

ment that directly tended to injure the plaintiff in respect to his business, or which impaired confidence in his character or ability. The fact that a business enterprise of any character has not been successful does not directly tend to injure the party conducting the enterprise. There is nothing but lack of success charged. It is not even charged that the lack of success was the fault of the plaintiff's management or judgment. There is nothing charged against the plaintiff in relation to his profession or occupation; nothing to indicate that the lack of success was because of any fault of the plaintiff, or that his conduct of the shows had caused their lack of success. A mere statement of the publication shows that there was no charge made against the plaintiff in connection with his profession or occupation that would directly tend to injure the plaintiff or to impair confidence in his character or ability. It follows that the publication was not libelous per se, and the action can only be maintained if the publication had caused special damage.

The judgment appealed from must therefore be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend within 20 days, upon payment of costs in this court and in the court below. All concur.

BRAUER v. NEW YORK CITY INTERBOROUGH RY. CO.

(Supreme Court, Appellate Divisio

First Department. April 8, 1909.) EVIDENCE (8 123*)-RES GESTE-STATEMENTS AFTER ACCIDENT.

In an action against a street car company for the death of the driver of a wagon by collision with a car, testimony of a declaration by the motorman, a few seconds after the collision, that "he bothered me all across the bridge," is not admissible as res gestæ, where the accident occurred after the car had crossed the bridge.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 351, 364, 365; Dec. Dig. § 123.*]

Patterson, P. J., dissenting.

Appeal from Trial Term, New York County.

Action by Fannie Brauer, as administratrix of the estate of Paul Frederick Brauer, deceased, against the New York City Interborough Railway Company. From a judgment for plaintiff, and an order denying its motion for new trial, defendant appeals. Reversed.

See, also, 129 App. Div. 384, 113 N. Y. Supp. 705.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, MCLAUGHLIN, and SCOTT, JJ.

Lemuel E. Quigg (Bayard H. Ames and John Montgomery, on the brief), for appellant.

Joseph Beihilf, for respondent.

LAUGHLIN, J. This is a statutory action to recover for the death of Paul Frederick Brauer, which was caused by a collision between one of the defendant's street cars, going northerly on Aqueduct avenue, in the vicinity of Featherbed Lane, in the borough of the

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Bronx, at about 7:30 o'clock in the evening on the 3d day of December, 1906, and a wagon in which the decedent was riding. It was a dark night. Decedent was traveling in the same general direction that the car was going, and he was carrying no light on his wagon, as required by ordinance of the city. At the time of the collision the decedent was either traveling along the track or was crossing it diagonally. The car was going very fast; but it had the usual headlight and lights in the interior. The decedent was killed instantly.

The questions of freedom from negligence on the part of the decedent and of negligence on the part of the defendant were close questions of fact on the evidence adduced upon the trial. An item of evidence bearing upon these questions of fact was received, over objection and exception duly interposed and taken by the defendant, which we think requires a reversal. The court received, upon the ground that it was admissible as part of the res gestæ, evidence of a declaration made by the motorman within a few seconds after the collision. A passenger, who was seated within the car, arose on hearing the motorman sound the gong just before the collision occurred, and stepped to and opened the front door, and was permitted to testify, over objection and exception of the defendant, that either within four or five seconds after the collision occurred, or after the body of the decedent was removed from under the car-the witness having testified both ways on that point-he heard the motorman say: "He bothered me all across the bridge." In any view of the testimony of the witness, the collision had taken place before he heard the motorman make this statement, and therefore it was a declaration relating to a past event. The statement of the motorman was not made in answer to a question by anybody, and it does not appear that any one save the passenger was in sight or within hearing distance. It appeared from other evidence in the case that the car had passed over a bridge within a few hundred feet of the scene of the accident, and there was evidence tending to show that a wagon was on the track ahead of the car at that point, and that the wagon in which the decedent was riding was seen upon the track ahead of the car shortly before the collision, and seen to turn off the track, and the inference from some of the evidence would be that the driver turned onto the track again. The statement of the motorman was necessarily quite damaging to the defendant. The inference that would likely be drawn from it is that the motorman felt that the decedent deserved to have the wagon in which he was riding bumped by the car on account of what had occurred before, and his statement might convey the impression that he purposely propelled his car against the wagon, maliciously, or in a spirit of revenge.

The only theory upon which the learned counsel for the respondent seeks to sustain the admissibility of this evidence is that it was an involuntary, spontaneous exclamation, under the ruling in the case of People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690, and kindred cases. In order to sustain the admissibility of the evidence upon that ground, however, it is essential that the exclamation should characterize the

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