FIRST DEPARTMENT, NOVEMBER, 1904. [Vol. 97. appeal is taken. The action is to recover damages for a libel. The defendant is the proprietor of a newspaper, and in that paper, on a day specified in the complaint, it published an article concerning the plaintiff, in which, after referring to his business and his great success in establishing it and evolving interests of great magnitude from very small beginnings, it goes on to refer to his complete absorption in the pursuit of money making and then proceeds as follows: "A sensation was created recently by the announcement made by Mrs. Woolworth that her life had been made unhappy because her husband neglected everything, herself included, in his absorbing pursuit of millions. She declared that he sacrificed everything to his one passion. Mrs. Woolworth and her husband are now separated, which she ascribes as due to the incompatibility of the artistic and the money-making temperaments." No special damage is alleged in the complaint and the court at Special Term sustained the demurrer on the ground that the article complained of was not libelous per se. We differ with the court below in that view. The parts of the article above quoted indicate that upon the declaration of the plaintiff's own wife he is so base and sordid that he neglected everything, herself included, in his absorbing pursuit of money. That is a very singular construction of this article which regards it as not holding the person criticised up to scorn and contempt. One of the meanest of all vices is the mere love of money, and when a man is accused of being affected by that vice so far as to lose sight of the duty he owes to his wife or to his family, he is made at once contemptible. The article complained of is not of the innocent character ascribed to it by the learned judge at Special Term. Analyzing it and ascertaining the meaning it would convey to the minds of ordinary newspaper readers, it asserts that the plaintiff and his wife are now separated and that that separation was caused by the plaintiff sacrificing everything to his passion for money getting. "A written or printed statement or article published of or concerning another, which is false and tends to injure his reputation and thereby expose him to public hatred, contempt, scorn, obloquy or shame, is libelous per se." (Triggs v. Sun Printing & Pub. Assn., 179 N. Y. 153.) The plaintiff is right in his contention that the App. Div.] FIRST DEPARtment, NoveMBER, 1904. article he complains of holds him up to public contempt and scorn and to shame. The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to withdraw demurrer and to answer within twenty days after service of the order to be entered on this decision on payment of costs in this court and in the court below. VAN BRUNT, P. J., O'BRIEN, HATCH and LAUGHLIN, JJ., concurred. Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer upon payment of costs in this court and in the court below. WILLIAM S. HONIGBAUM and HARRY H. HONIGBAUM, Appellants, v. BERTHA JACKSON, as Administratrix of LOUIS JACKSON, Deceased, Defendant. HENRY JACKSON, Respondent. Right to intervene - it does not exist in the case of a statutory reference of a disputed claim for money against an estate - the equitable power to allow intervention does not exist in the case of a money demand, where the intervenor is not an infant. Under section 2718 of the Code of Civil Procedure, relative to the reference of disputed claims against a decedent's estate, which provides that on the entry of the order of reference 'the proceeding shall become an action in the Supreme Court," the right of a third party to intervene upon such a reference is governed by the general provisions of law relating to that subject, to wit, section 452 of the Code of Civil Procedure. Where the subject-matter of the reference is a mere money demand, a third party will not be allowed to intervene, as the Supreme Court has no power, under section 452 of the Code of Civil Procedure, to compel the plaintiff in an action in which a money judgment only is sought and in which title to no real, specific or tangible personal property is involved, to bring in as a defendant a third party on the latter's application. The third party will not be allowed to intervene in such a proceeding, on the theory that an equitable power resides in the court to allow a stranger to intervene in an action where facts are presented showing that he has some possible interest in the event of the action, as such equitable power does not exist in the case of a mere money demand and where the proposed intervenor is not an infant. FIRST DEPARTMENT, NOVEMBER, 1904. [Vol. 97. APPEAL by the plaintiffs, William S. Honigbaum and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of September, 1904, granting a motion made by the respondent, Henry Jackson, for leave to intervene in the above-entitled action. J. A. Seidman, for the appellants. Jacob J. Aronson, for the respondent. PATTERSON, J.: The order from which this appeal is taken cannot be sustained. By it the respondent is allowed to intervene, and become a party to an action pending in the Supreme Court and on trial before a referee. The plaintiffs made a claim, which is simply a money demand, against the estate of Louis Jackson, deceased. That claim was resisted by the administratrix with the will annexed, and thereupon proceedings were taken under section 2718 of the Code of Civil Procedure and a referee was appointed to pass upon its merits. The respondent, who is a legatee under the will of the decedent, asks to be allowed to intervene and assigns as grounds of his application that there is reason to apprehend that the administratrix is not acting in good faith; that she is in collusion with the plaintiffs, who are her children, and that she will not properly contest their right to recover, and that if they do recover upon their asserted claim, it will be necessary to resort to the assets of the estate to pay the judgment, and among such assets are the articles specifically bequeathed to the respondent. By the terms of section 2718 of the Code of Civil Procedure, the proceeding for the ascertainment of the validity of the plaintiff's claim became, on the appointment of the referee, an action in the Supreme Court. The statute is explicit. It says that "on the entry of such order, the proceeding shall become an action in the Supreme Court." That being the status of the proceeding, the right to intervene in it must be controlled by provisions of law relating to that subject. The right of a third party to intervene in an action is conferred by section 452 of the Code of Civil Procedure. There has been a diversity of opinion as to the proper construc App. Div.] FIRST DEPARTMENT, NOVEMBER, 1904. tion to be given to that provision of the Code, but its interpretation has been finally settled by the Court of Appeals. In Bauer v. Dewey (166 N. Y. 402) it was held that the Supreme Court has "no authority under section 452 of the Code of Civil Procedure to compel the plaintiff, in an action in which a money judgment only is sought and in which the title to no real, specific or tangible personal property is involved, to bring in as a defendant a third party on his own application." In the present case, there is merely a money demand. There is nothing in the action affecting the title to any property. It is suggested by the respondent that an equitable power resides in the court to allow a stranger to intervene in an action where facts are presented showing that he has some possible interest in the event of that action, and the case of Mertens v. Mertens (87 App. Div. 295) is cited as authority for that proposition. There, the interest of an infant was directly involved and the court exercised its power to guard the interests of a person not able to protect himself, and because of the exceptional character of the case. Haas v. Craighead (19 Hun, 396) is also relied upon in support of the order now under consideration; but that was a suit in equity, relating to something more than a mere money demand. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for leave to intervene denied, with ten dollars costs. VAN BRUNT, P. J., O'BRIEN, HATCH and LAUGHLIN, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion for leave to intervene denied, with ten dollars costs. APP. DIV.-VOL. XCVII. 34 FIRST DEPARTMENT, NOVEMBER, 1904. [Vol. 97. In the Matter of the Application of GEORGE GUEUTAL, Individually and as Administrator de Bonis Non of CATHERINE GUEUTAL, Deceased, to Appoint a Substituted Trustee in the Place of LOUISE C. GUEUTAL, Deceased, the Deceased Trustee, under a Certain Deed and Declaration of Trust Made by LOUISE C. GUEUTAL, Dated January 2, 1880; and also as Administrator, etc., of LOUIS C. GUEUTAL, the Son of CATHERINE GUEUTAL. ADELE GUEUTAL and Others, Appellants; GEORGE GUEUTAL and Others, Respondents. Trust - appointment by the court of a person to execute a trust, where the trustee has died-form of the order — validity of the trust not considered. Where a trust created by deed has, by the death of the trustee, after the trust has been partly executed, devolved upon the court, the court has power to appoint some one as its representative to execute the unexecuted part of the trust with all the powers and duties of the original trustee, but under the direction of the court. The order appointing such a representative of the court should follow the language of the statute; it should not designate such representative as a "substituted trustee," as the statute does not authorize him to be so designated. On a motion for the appointment of such a representative of the court, the validity of the trust will not be determined. APPEAL by Adele Gueutal and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1904, appointing a substituted trustee in the place of a deceased trustee. Hamilton R. Squier, for the appellants. 1. Newton Williams, for the petitioner, respondent. James C. de La Mare, for the respondent Huston. PATTERSON, J.: This appeal is from an order which purports to grant an application for the appointment of a "substituted trustee" in the place of a deceased trustee, who, it is claimed, received a conveyance of |