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wholly false and untrue, the "plaintiff has been prevented from following his usual vocation, * * and has been prevented from engaging in profitable enterprises, and his reputation as a capable, honorable, and energetic man of business has been greatly damaged, and he has been held up to public scorn, ridicule, and contempt, to his great damage.”

Each of the publications complained of charges the plaintiff with extravagance, if not with incompetence, in the conduct of the kind of business in which he is engaged. The defendant's contention is that the articles contain merely characterizations of the plaintiff's conduct which are not libelous; but if we take this view the complaint would not be demurrable, because we have the colloquium or special averment that such characterizations were false and damaged the plaintiff in his particular business. Words not actionable in themselves may become so when spoken of a man in his trade, where it is shown by a colloquium or special averment that they touched him therein. Newell on Defamation, Slander and Libel, p. 68. And, apart from whether such an action for libel is stated, we have here sufficient to present a question of fact as to whether the charge was libelous, because the plaintiff avers that it was false, and that it injured him in his business reputation, and that he was "held up to public scorn, ridicule, and contempt, to his great damage.”

For the purpose of determining the sufficiency of a complaint, we have the following rules laid down in Morrison v. Smith, supra:

"If the language unambiguous, whether it is actionable becomes a question of law; but if ambiguous, and capable of an innocent as well as of a disgraceful meaning, the question becomes one for the jury to settle. When the defamatory meaning is not apparent, innuendo is necessary.

If they [the words] are capable of such a meaning, however improbable it may appear, the jury should say whether they may be so understood."

Charges, even though they do not impute to plaintiff disgraceful conduct, would be actionable if their tendency is to injure him in his particular business, calling, trade, or profession. Ordinarily the characterization of a person as extravagant would not be libelous, because persons are not necessarily lessened in the esteem of others merely because they are extravagant; but a charge that one's extravagance has brought to bankruptcy a company or enterprise in which others are interested may injuriously affect any man, and particularly one whose business it is to act as the manager of large enterprises in which others have invested money.

We think, therefore, that the complaint, taking the fair import of the articles, namely, that the plaintiff, as manager, so extravagantly conducted the affairs of the company as to injure its credit to such an extent that attachments in favor of creditors were allowed against it, in connection with the averments as to the plaintiff's business or calling, states a good cause of action. Because, whether or not we construe the language as holding the plaintiff up to public scorn or ridicule, which would be a question of fact for the jury, or whether we conclude that its tendency, as claimed, was to inflict special damiage on his business reputation and calling, in either view the complaint states a good cause of action.

Our conclusion is that the demurrer was properly overruled, and that the interlocutory judgment should be affirmed, with costs, with leave to

and 122 New York State Reporter the defendant to withdraw the demurrer, and to answer upon payment of costs in this court and in the court below.

INGRAHAM, MCLAUGHLIN, and HATCH, JJ., concur. VAN BRUNT, P. J., dissents.

INGRAHAM, J. I concur with Mr. Justice O'BRIEN. The plaintiff alleges that he was engaged in important financial and commercial enterprises in the United States, involving the use and management by plaintiff of large sums of money intrusted to him by other persons residing in the United States and in foreign countries, and that the statements contained in each of the articles published of and concerning the plaintiff were and are wholly false and untrue, and that by reason thereof the plaintiff has been prevented from following his usual vocation, as set forth in paragraph first of the complaint, and has been prevented from engaging in profitable enterprises, and his reputation as a capable, honorable, and energetic man has been greatly damaged. In Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 81, Judge Andrews, in delivering the opinion of the court, says:

“The other class fall, for the most part at least, within the third specification in the opinion of Chief Justice De Gray-of words which tend to injure one in his trade or occupation. The case of words affecting the credit of a trader, such as imputing bankruptcy or insolvency, is an illustration. The action is maintainable in such a case, although no fraud or dishonesty is charged, and although the words were spoken without actual malice. 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."

And the opinion cites with approval the case of Whitaker v. Bradley, 7 D. & R. 649, where it is said:

"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."

The articles published by defendant, if believed, would certainly injure the reputation of a man engaged in the management of important financial and commercial enterprises involving the use of large sums of money by others. No one would care to intrust a man with large sums of money to aid in important financial commercial enterprises if his extravagance when engaged in like enterprises had been such as to startle people and get a company with which he was connected into trouble. The libel, charging that a mine managed by the plaintiff had become largely insolvent as a result of extravagance, would necessarily impute to the person responsible for the management a lack of proper business capacity, and would thus be a direct charge of business incapacity, which would entitle him to maintain an action for damages caused by the publication.

O'BRIEN and HATCH, JJ., concur.

PEOPLE ex rel. ROCHESTER TELEPHONE CO. V. PRIEST et al., State

Tax Com'rs.

(Supreme Court, Appellate Division, Third Department. May 11, 1904.) 1. TAXATION—SPECIAL FRANCHISE-ASSESSMENT—CERTIORARI–PARTIESMUNICIPAL CORPORATION.

Tax Law (Laws 1896, p. 882, c. 908) art. 11, § 251, provides that the justice or court may allow a writ of certiorari to the officers making the assessment, to review it. Section 45, as amended by Laws 1900, p. 510, c. 254, provides that an assessment of a special franchise by the State Board of Tax Commissioners may be reviewed in the manner provided by article 11, and that the writ of certiorari must run to, and be answered by, the State Board of Tax Commissioners, and that no writ shall run to any other board or officer unless otherwise directed by the court granting the writ. An adjudication made in the certiorari proceeding is declared to be binding on the local assessors and ministerial officers in the same manner as if they had been made parties. Held that, in certiorari to review the assessment of a special franchise, a municipal corporation cannot be made a party.

Appeal from Special Term, Albany County.

Certiorari by the people, on the relation of the Rochester Telephone Company, against George E. Priest and others, as State Tax Commissioners. From an order granting a motion to make the city of Rochester a party defendant, relator appeals. Reversed.

The relator is a telephone corporation operating a telephone system in the city of Rochester. In 1903 the respondents fixed and determined the valuation of the relator's special franchise subject to assessment in the city of Rochester and in the several tax districts thereof. This proceeding was commenced to review such determination and assessment. A writ of certiorari was duly issued, directed to the respondents, and they made their return thereto; and a hearing was had at the Special Term, and the evidence relating to the issues was taken and closed. Prior to the decision of the court being signed and filed, the city of Rochester made application by motion for an order “making the city of Rochester and its assessors parties defendant in this proceeding, with leave to serve their answers to the relator's petition with the same force and effect as if they had been made parties defendant herein at the time of the commencement of the proceeding." The order appealed from was then made.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Satterlee, Bissell, Taylor & French (Charles J. Bissell, of counsel). for appellant.

John Cunneen, Atty. Gen., for respondents.
W. W. Webb, for respondent city of Rochester.

CHASE, J. Certiorari, except as it has been enlarged and extended by statute, is a common-law writ. In its office, it is confined to reviewing proceedings of inferior courts, officers, boards, and tribunals, where there is no other remedy provided by statute. The writ, in terms, directs inferior courts, officers, boards, or tribunals to certify to the superior court the record of their proceedings for inspection and review, and the writ can run only to persons or tribunals that have acted judicially in making the determination sought

and 122 New York State Reporter to be reviewed. The purpose and extent of a statutory writ is defined by the statute authorizing it. The writ of certiorari authorized by article 11 of the tax law (chapter 908, p. 882, Laws of 1896) is a special statutory writ:

The Court of Appeals, in Mercantile National Bank v. Mayor, etc., of N. Y., 172 N. Y. 37, 64 N. E. 758, say:

"With the enactment of chapter 269 of the Laws of 1880, there was created a new and complete system for reviewing upon certiorari, and for thereby correcting the errors of assessing officers. People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610, 3 N. E. 903. It rendered inapplicable the provisions of the Code of Civil Procedure relating to the writ of certiorari (People ex rel. Church of the Holy Communion v. Assessors, 106 N. Y. 671, 12 N. E. 794; Matter of Corwin, 135 N. Y. 245, 32 N. E. 16), and resumed within itself the remedies available to a taxpayer aggrieved by the action of the assessing officers. What was discretionary at common law now became a right. I think that that act became the only authority for the review of errors in assessments for purposes of taxation.”

Chapter 269, p. 402, of the Laws of 1880, was repealed when the tax law was enacted, but the language of the court quoted is applicable to sections 250 to 256 of said article 11 of the tax law. We must look to the statute, therefore, to ascertain whether the city of Rochester was properly made a party to the proceeding.

By section 251, art. 11, of the tax law, it is provided :

"The justice or court may allow a writ of certiorari to the officers making the assessment to review such assessment."

By section 45 of said tax law, as amended by chapter 254, p. 510, Laws 1900, it is provided :

"An assessment of a special franchise by the State Board of Tax Commissioners may be reviewed in the manner prescribed by article eleven of this chapter, and that article applies so far as practicable to such an assessment in the same manner and with the same force and effect as if the assessment had been inade by local assessors.

Such writ must run to and be answered by said State Board of Tax Commissioners and no writ of certiorari to renew any assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding."

While the writ of certiorari to review a local assessment can run to the officers making the assessment only, the statute would seem to recognize that, in reviewing an assessment of a special franchise made by the State Board of Tax Commissioners, it may be necessary to have before the court the record of some other board or officer, and the court is consequently given authority to direct that the writ shall run to such other board or officer, to the end that such other. board or officer can return to it such record as to the court or judge shall seem necessary for the review of the assessment of said special franchise; but there is nothing in said act, particularly when interpreted in the light of the law and practice as applied to common-law certiorari, to authorize the court to bring before it a municipal corporation as such as a party defendant. No express or implied author

ity for making a municipal corporation a party defendant in this proceeding having been called to our attention, we are of the opinion that the order as made was without authority.

The order should be reversed, with $10 costs and disbursements. All concur.

BURDICK et al. v. CHESEBROUGH. (Supreme Court, Appellate Division, Third Department. May 4, 1904.) 1. PLEADING–CHATTELS-OWNERSHIP-SUFFICIENCY OF ALLEGATION.

In replevin for a chattel, an allegation that "said plaintiffs were the owners thereof as hereinbefore stated," is not an allegation of ownership at the time the action was commenced, within Code Civ. Proc. $ 1720,

making such an allegation a sufficient statement of title 2 SAME-CONCLUSIONS OF LAW.

In replevin for a chattel, allegations that when defendant wrongfully and unlawfully took the property plaintiffs were the owners thereof, as before stated in the complaint, and were entitled to immediate possession,

were mere conclusions of law on the facts stated in the complaint. 3. SAME-DEMURRER-EFFECT-ADMISSION OF Facts.

The sufficiency of a complaint is to be determined by the facts stated, and not by conclusions, and conclusions from other facts stated are not

admitted by demurrer. ISANE-TREASURE TROVE-TITLE-OWNER OF REALTY.

Personal property deposited beneath the surface of the soil, and so left until the place of deposit is forgotten, and the owner or his personal representatives cannot be found, becomes, as a part of the soil, the property of the owner of the realty, and passes by gift, sale, or descent, as a part of the realty, and, if discovered and removed from the soil, it be comes the personal property of the owner of the realty as against every

one but the true owner, and not the property of the finder. 6. SAME-PLEADING_TITLE IN EXECUTORS.

In replevin by executors for a chattel, allegations that the chattel had been deposited in the soil of the real property for many years prior to the death of plaintiffs' testator, do not, as a matter of law, show that plaintiffs are the owners, or are entitled to the possession, of the chattel, wbere the complaint further shows that at the time of testator's death, the chattel was still deposited in the soil, and was bence a part of the realty. Appeal from Trial Term, Madison County.

Action by Arthur H. Burdick and Edgar F. Burdick, individually and as executors of the will of Henry F. Burdick, deceased, against Marion Chesebrough. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

The plaintiffs, by their complaint, alleged that Henry F. Burdick died on the 290 day of March, 1903, leaving a last will and testament, which has been dols admitted to probate; that they were named as executors in said will, . and that letters testamentary have been duly issued to them. The complaint further alleged: "That in and by said will the said Henry F. Burdick devised and bequeathed the undivided two-thirds of his estate, both real and personal, to the said plaintiffs. That at the time of his death the said Henry F. Burdick was, and for many years had been, the owner of, and bad the legal title to, the following described real estate.

That at the death of the said Henry F. Burdick the said plaintiffs, under and by virtue of said

*

14. See Finding Lost Goods, vol. 23, Cent, Dig. 88 1, 2, 9.

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