Art. 4. Slander.

It is not actionable to charge a man with keeping false books of account unless the keeping of books is an incident to his business. Rathbun v. Emigh, 6 Wend. 407.

Words imputing insolvency of a person, although not a merchant, to whom credit is given, are actionable. Carpenter v. Dennis, 3 Sandf. 305.

Words spoken of a merchant importing that he is unable to pay his debts, as "Poor H., it is hard for him to lose his debt,' held actionable. Mott v. Comstock, 7 Cow. 654.

So also the words, "I understand there is trouble with S.," spoken of a merchant, held actionable as implying want of credit or responsibility. Sewall v. Catlin, 3 Wend. 291.

Words spoken of a drover, "He is not good for the debt; I doubt whether you ever see him again," were held proper to be sent to the jury to determine whether they implied insolvency. Calkins v. Wheaten, 1 Edm. 226.

The words, "There is a time when men fail who must fail, and O.'s time has come," are actionable as imputing insolvency. Ostrom v. Calkins, 5 Wend. 263.

Words imputing insolvency are actionable. 5 Wend. 263; Fry v. Bennett, 28 N. Y. 324.

Ostrom v. Calkins,

Words spoken or published of a party as a merchant or tradesman in relation to the solvency, to be actionable, must in their common acceptation imply a want of credit or responsibility. Lewis v. Chapman, 16 N. Y. 369 (375).

But a statement by an auctioneer in refusing to accept plaintiff's bid, that he was irresponsible, is not actionable, unless express malice is shown. Green v. Meyer, 78 St. Rep. 81, 44 N. Y.

Supp. 81.

A charge that plaintiff "is a drunkard," and by reason of his drunkenness he is no good any more "as a mechanic." is actionable. Fitzgerald v. Geils, 84 Hun, 295, 32 N. Y. Supp. 306.

To say of a brick mason that "he is no mechanic; he could not make a good wall, or do a good job of plastering; he is no workman, and that he is a botch," is actionable. Fitzgerald v. Redfield, 51 Barb. 484.

Words to be actionable must impute fault to the plaintiff himself, not to the article in which he deals. Thus, to say of a watchmaker that "his watches are bad," imputes a fault to the article

Art. 4. Slander.

in which he deals, and are not slanderous words as to the plaintiff. Tobias v. Harland, 4 Wend. 537.

A statement that a person is afraid to go to the house of plaintiff alone, stating that he is a desperate, dangerous man, is not actionable, although spoken of the keeper of a public house. Ireland v. McGarvish, 1 Sandf. 155.

See "Slander of Title " and " Libel upon Business," art. XV.

SUBDIVISION 4.

Words Imputing a Contagious Disease.

Words which impute that a party is affected with a contagious disease, which would exclude him from society, are actionable in themselves, without proof of special damage. Newell (p. 198) states that leprosy and the venereal diseases are the only diseases included in this category. This is also the rule laid down in Starkie, p. 113; Pollard v. Lyon, 91 U. S. 225 (226).

To falsely publish that a man has leprosy is actionable per se. Simpson v. Press Publishing Co., 30 Misc. Rep. 228, 67 N. Y. Supp. 401.

Am. & Eng. Encyc. of Law, vol. 18, p. 932, includes the plague as one of the diseases of this character. As does Fraser (p. 29), citing Taylor v. Perkins, Cro. Jac. 144; Rolle's Abridgment, 44; Villers v. Mousley, 2 Wils. 403; Bloodworth v. Grey, 7 McGr. 334, as illustrations of the diseases included in the general definition.

The rule has been applied in this State in Williams v. Holredge, 22 Barb. 396, where it was said of a woman: "She has the venereal disease." In Hewit v. Mason, 24 How. Pr. 366, it was held that the words "Nothing ails him but the pox; he is rotten with it; he got it," etc., were actionable.

But such an allegation used in the past tense is not actionable, since the words must impute a present continuance of the disease. Carslake v. Mapledoram, 2 T. R. 473; Pike v. Van Wormer, 5 How. Pr. 171; Smith v. Cook, 1 Alb. L. J. 162. It was held in Upton v. Upton, 51 Hun, 184, 4 N. Y. Supp. 936, that the words: "The plaintiff had a bad disease," does not necessarily impute a venereal disease. It was further held that it was not an imputation of want of chastity.

Newell, in closing the discussion of the subject, says that in respect to the terms in which the imputation is conveyed, they

Art. 4. Slander.

may either expressly impute the disease or by the aid of collateral circumstances render the implication unavoidable.

SUBDIVISION 5.

Words Imputing Unchastity.

At common law, words imputing unchastity or adultery to a woman, married or unmarried, were not actionable unless proof was made of special damage. Newell, 163; 18 Am. & Eng. Encyc. of Law, 932; Brooker v. Coffin, 5 Johns. 188; Buys v. Gillespie, 2 Johns. 115; Bradt v. Towsley, 13 Wend. 253; William v. Hill, 19 Johns. 305; Anonymous, 60 N. Y. 262; Terwilliger v. Wands, 17 N. Y. 54.

In Erwin v. Dezell, 64 Hun, 391, 19 N. Y. Supp. 784, it was held that words alleging that plaintiff had been arrested for bastardy and paid a sum to settle the matter were not actionable per se, the words not being spoken of the plaintiff in regard to his vocation or daily life.

This rule has been changed by section 1906 of the Code of Civil Procedure, so far as slander of a woman is concerned. The section is a re-enactment of chapter 219, Laws of 1871, and provides:

"In an action of slander, brought by a woman, for words imputing unchastity to her, it is not necessary to allege or prove special damages. If the plaintiff is married, the damages recovered are her separate property."

Under the decisions in this State, it has been held that unchastity in a woman means that she has had unlawful sexual intercourse, or is guilty of such conduct as would tend to indicate that she was ready and willing to submit to the unlawful embraces of a man. Mason v. Stratton, 17 St. Rep. 302, 1 N. Y. Supp. 511. This case also holds that language imputing acts, from which unchastity is to be inferred, is actionable.

In Courtney v. Mannheim, 39 St. Rep. 125, 14 N. Y. Supp. 929, it was held that the words, "You are an Irish whore," are slanderous under the statute.

The words "Those people up stairs keep a whorehouse," gives a cause of action to one showing himself to be one of those people up stairs. Cook v. Reif, 52 N. Y. Super. 252.

But the words: "Go over to my office; my wife and my mother are particular what company they keep; they do not wish to be

Art. 4. Slander.

annoyed by people of such character as you," spoken to a woman, do not necessarily imply want of chastity. McMahon v. Hallock, 1 N. Y. Supp. 312, 15 St. Rep. 828.

Calling the plaintiff a "God-damned Irish bitch" was held not necessarily to impute want of chastity. Nealon v. Frisbie, 11 Misc. Rep. 12, 31 N. Y. Supp. 856, citing Philips v. Baldwin, 8 Week. Dig. 194; McMahon v. Hallock, 15 St. Rep. 828, 1 N. Y. Supp. 312. The court holds, per McAdam, J., that these words do not, upon their face, convey a slanderous imputation, and that there must be a colloquium connected with the words spoken, and an innuendo showing the injurious sense in which they were uttered. The case seems to be decided substantially upon the insufficiency of the pleading rather than as a determination that the words are not slanderous when accompanied by proper allegation.

The words: "What are you? You are working in Mike Bryan's low hotel; any one that worked there ain't much, and I can prove it; and I dare you to have me arrested,"Held, not actionable without an averment of special damage. Brown v. Moore, 90 Hun, 169, 35 N. Y. Supp. 736.

A pleading in an action for slander charging the defendant with saying the plaintiff " was in the habit of entertaining gentlemen callers at all hours of the night" is not sufficient without innuendo or allegation as to the sense in which the words were used. Hemmens v. Nelson, 138 N. Y. 517.

In Distin v. Rose, 69 N. Y. 122, it was held that under chapter 219, Laws 1871, the plaintiff is not confined to proof of the charge stated in the complaint, but evidence is competent of words spoken by defendant at any time before the commencement of the action repeating substantially the same charge.

In Butterfield v. Bennett, 18 N. Y. Supp. 432, it was held that in an action under this section the defendant cannot have an order for bill of particulars showing the names of persons who lave shunned the plaintiff in consequence of the publication, but that the defendant is entitled to know the plaintiff's true address in order to fully investigate her antecedents in case he wishes to set up justification.

Statements made by a resident of a school district, having a daughter attending school, to the trustees of the district as to the character of a female teacher, if the defendant had no reason to be

Art. 5. Libel.

lieve the statement to be true, is evidence of malice and will render him liable. Harwood v. Keech, 4 Hun, 389.

The statement that a woman " caused her barkeeper to stay with her all night" does not necessarily impute unchastity. Taylor v. Wallace, 31 Misc. Rep. 393, 64 N. Y. Supp. 271.

A complaint alleging that defendant charged a married woman with having communicated to her husband a loathsome disease through the marital relation is not demurrable as failing to state facts constituting a cause of action, and it will be left to the jury to say, upon the evidence, whether the words impute unchastity. If they find that they do, the facts will bring the case within section 1906, authorizing an action without allegation of special damage. Woodruff v. Woodruff, 36 Misc. Rep. 15, 72 N. Y. Supp. 39.

4. Words injuring one in profession or business. 690 5. Words holding one up to scorn or ridicule. . 695

SUBDIVISION 1.

Definition, Criminal Libel Distinguished.

An action for libel is not limited to special grounds or by the necessity of proving special damage. It may be founded on any statement which disparages a man's private or professional character or which tends to hold him up to hatred, contempt, or ridicule. Encyclopaedia Britannica (article Libel), p. 505.

Holt, in his Law of Libel, says: "Everything written of another, which holds him up to scorn and ridicule, that might reasonably be considered as provoking him to a breach of the peace, is a libel." And again, "All such written abuse as may fairly be intended to impair him in the enjoyment of society, or throw a contempt upon him which might affect his general fortune and comfort, is a positive injury, and therefore the subject of an action

on the case."

With regard to that species of defamation which is effected by writing or printing, or by pictures and signs, and which is