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and 122 New York State Reporter For this error we are forced to reverse the judgment and order appealed from, and direct a new trial, with costs to the appellant to abide the event. All concur.

KELSEY V. WEBB.

(Supreme Court, Appellate Division, Third Department. May 11, 1904.) 1. WILLS-TRUST- LIABILITY FOR DEBTS.

Under a will giving property to defendant's children, but providing that it shall not be distributed so long as he lives, but till his death the income shall be subject to a reasonable support of him and his family,

none of the income is subject to be taken by his creditors. 2. SUPPLEMENTARY PROCEEDINGS—APPOINTMENT OF RECEIVER.

An order appointing a receiver in supplementary proceedings, and directing a delivery to him of property when the persons to whom it is directed have no property to which he is entitled, and defendant has no

interest in property applicable to payınent of his debts, will be reversed. Appeal from Special Term, Franklin County.

Supplementary proceeding by William G. Kelsey against Luke S. Webb. From an order

appointing a receiver, defendant individually and he and Charles P. Elliott as executors of Thomas J. Webb, deceased, appeal. Reversed.

The plaintiff obtained a judgment against the defendant in 1901, and the same year, on the return of an execution unsatisfied, commenced a proceeding against said defendant supplementary to said execution. The defendant was examined in said proceeding, and an application was then made for the appointment of a receiver, which was denied without prejudice to other proceedings. About two years thereafter this proceeding was commenced, and the defendant appeared, and was examined without objection. At the close of the examination the referee before whom the evidence was taken made his report, and a motion was then made at special term for the appointment of a receiver, and an order was then made appointing a receiver; and the order also provides: "It is further ordered, that Luke S. Webb and Luke S. Webb and Charles P. Elliott, as executors of the last will and testament of Thomas Webb, late of the town of Fort Covington, New York, deceased, nor otherwise, upon being served with a certified copy of this order and of notice of filing of the bond prescribed by this order, deliver to said receiver all property and money now in his or their possession, or under his control, belonging to the said Luke S. Webb, and not exempt by section 2463 of the Code of Civil Procedure, or otherwise." The defendant's father died several years ago, leaving a will, which has been admitted to probate, and the defendant and said Charles P. Elliott were duly appointed executors thereof, and letters testamentary were issued to them. By said will he gave his residuary estate to the children of the defendant in equal shares. The will then further provides : "Said property, both real and personal, is not to be divided nor distributed so long as Luke S. Webb shall live, but continue and remain intact for that period of time. At his decease the same is to distributed share and share alike among his said children, but should said Luke S. Webb decease before his wife, Mary A., then said Mary A. shall be supported out of my real and personal estate drawing from the respective shares of my aforesaid grandchildren so long as she remains the widow of said Luke S. Webb. The use and income of said property subject to the bequests hereinbefore made is to be distributed by my said executors after a reasonable support of said Luke S. Webb and family shall have been bad and taken by said Luke S. Webb, for services for taking care of and managing said property. Shall be distributed by my said executors among said children equally, but before such distribution shall be made my said executors shall use so much of the excess

of said income as may be deemed proper by them for the education of the said Judson. It is my desire and request that the fences and buildings on my several pieces of land, and on my farm, shall be kept in good repair and condition, according to the best judgment of my executors." The deceased left certain real property and a small amount of personal property, all of which is held by said executors. In one of the houses so held, the defendant, who is now a widower, lives with one or more of his five children. The balance of the real and personal property is rented, and from it there is received by the executors a gross amount of about $400 per annum, the net amount of which has been and is being used by said executors toward the support of the defendapt and his children, the residuary legatees. It is not claimed that the defendant has any property, real or personal, other than the interest which he has, as stated, in the estate of his deceased father. The affidavit upon which the order for a receiver was granted states : "That said judgment debtor has property applicable to the payment of the judgment herein as deponent verily believes, namely, in that he is entitled to the rents, uses, and income of certain real property situate in the town of Fort Covington, Frank. lin county, New York, amounting in value to the sum of between five and seven hundred dollars per annum, as appears by the evidence herein, to which reference is hereby made, and as deponent verily believes.”

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

Charles A. Burke, for appellants.
Kellas & Genaway (John P. Kellas, of counsel), for respondent.

CHASE, J. No claim is made in this court that the defendant is entitled to commissions or pay for services performed for the estate which can be taken by a receiver for the benefit of the plaintiff, nor is there proof that any equitable or legal claim for commissions or services exists. Plaintiff claims that the income from the real and personal property left by the de' ndant's father to his executors in trust is subject to be taken by the defendant's creditors. In this he is mistaken. The intention of the testator was, first, to secure the income for the personal support of his son, the defendant. The payment and application of the income toward such support is left to the executors, and any amount remaining in their hands continues trust property. If the income exceeds a reasonable amount for such support, such excess of income is the property of the children of the defendant. Ordinarily, an order appointing a receiver in supplementary proceedings will not be reversed on appeal. If the defendant denies that he has any property, but there remains a real controversy or doubt about the correctness of his claim, the appointment of a receiver should not be disturbed, but no reason for the appointment of a receiver can exist, if it is clear and certain that there is nothing to receive. If property is subsequently acquired, it can be reached by execution, or, if necessary, a new proceeding can be instituted. Where there has been an unrestricted examination of the defendant, and it is clear that the defendant has no vested or contingent interest in any property applicable to the payment of his debts (Hancock v. Sears, 93 N. Y. 79-81; Bryan v. Grant, 87 Hun, 68–70, 33 N. Y. Supp. 957; Gibney v. Reilly, 26 Misc. Rep. 275, 56 N. Y. Supp. 1055; DeCamp v. Dempsey, 10 N. Y. Civ. Proc. 210213; Practice in Supplementary Proceedings, Bradner [2d Ed.] 180, 181), and particularly where, in addition thereto, as in this case, the

and 122 New York State Reporter order appointing a receiver was undoubtedly made under a misapprehension of the creditor's right to appropriate the income of the trust property to the payment of his debt, and the court has directed a delivery to said receiver of property and money when the persons to whom the order is directed have neither property nor money to which the receiver is entitled, such order can only be used to harass and annoy the defendant, and it should be reversed.

Order reversed, without costs. All concur.

(94 App. Div. 314.)

DAILY V. ENGINEERING & MINING JOURNAL.

(Supreme Court, Appellate Division, First Department. May 13, 1904.) 1. LIBEL-CONSTRUCTION OF ARTICLE-CHARGE OF EMBEZZLEMENT.

To publish of the manager of a corporation, upon the property of which attachments have been issued, that "his extravagance startled people, and he finally got the company into trouble," and that “the whole failure is the result of extravagant management,” does not charge him with embezzle

ment. 2. SAME-SUFFICIENCY OF COMPLAINT.

Plaintiff in a libel suit alleged that he had been engaged in financial and commercial enterprises involving the use and management of large sums of money intrusted to him by other persons, and that his reputation had been that of a competent, energetic, and honorable man of business ; that defendants, in their paper, published of him that the company had had attachments placed on its property, that plaintiff had figured largely in the company, that his extravagance startled people, and finally got the company into trouble, and that he was deposed and no longer in California, meaning thereby that plaintiff had caused the company to become financially embarrassed by using its funds for his own extravagance, and that because thereof he was removed from his position as manager and had absconded; that they also published that the whole failure of the company was the result of extravagant management, that plaintiff was its local manager, and that finally its property was attached by creditors, etc.; that these statements concerning plaintiff were wholly false, and that by reason thereof plaintiff had been prevented from following his usual vocation, and from engaging in profitable enterprises, and his reputation as a man of business had been greatly damaged, and he had been held up to public scorn, ridicule, and contempt. Held, that whether the language of the libel be construed as holding plaintiff up to public scorn and ridicule, or whether its tendency was to inflict special damage on his business reputation, the complaint stated a good cause of action.

Van Brunt, P. J., dissenting.
Appeal from Special Term, New York County.

Action by William H. Daily against the Engineering & Mining Journal. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

The complaint is as follows:

"First. That the plaintiff, at all the times hereinafter stated, was and still is a citizen of the United States, residing within the city, county, and the state of New York, and has for many years last past been engaged in important financial and commercial enterprises in the United States, involving the use and management by the plaintiff of large sums of money intrusted to him by other persons residing in the United States and in foreign countries; and the plaintiff's reputation, both in the United States and elsewhere, has always been that of a competent, energetic, and honorable man of business, and one

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to whom the management of large enterprises, requiring the exercise of econ. omy, good judgment, and integrity, could be safely intrusted.

"Second. That, as the plaintiff is informed and believes, and therefore alleges, the defendant at all times hereinafter stated was, and still is, a corporation organized and existing under the laws of the state of New York, in the United States of America, and was and still is the owner and publisher of a newspaper called The Engineering and Mining Journal,' which said paper is of great general circulation in the city of New York, in the United States, in the Kingdom of Great Britain, Ireland, and elsewhere.

"Third. That on or about the 28th day of February, 1903, the defendant maliciously composed and published of and concerning this plaintiff in said newspaper, the Engineering and Mining Journal, a certain article containing the false and defamatory matter following, to wit: 'Attachments have been placed on the property of the Copper King Mining Company, Limited, at Clovis, Fresno county, though the mine is still at work. Captain C. Harvey, representing the London stockholders, is in San Francisco endeavoring to straighten affairs up for the principal owner, Frank Gardner, of London. This is the mine in which W. H. Daily figures largely. His extravagance startled people, and finally got the company into trouble. He was deposed, and is no longer in California. The bills will doubtless be paid, but it remains to be seen whether the mine pays as well as the stockholders were led to expect. It has a smelter at Seal Bluff Landing, on San Francisco Bay-meaning and intending thereby that plaintiff caused said Copper King Company, Limited, to become financially embarrassed by using its funds for his own personal extravagance, and that because thereof he was removed from his position as manager by said corporation, and absconded from the state of California.

“Fourth. That on or about the 18th day of July, 1903, the defendant maliciously composed and published of and concerning this plaintiff in said newspaper, the Engineering and Mining Journal, a certain article containing the false and defamatory matter following, to wit: “San Francisco, July 8th. From our special correspondent. The Copper King Mining Company, Limited, with a mine at Clovis, Fresno county, and a smelter on the upper shores of San Francisco Bay, has filed its schedules of debts and property in the United States courts; and this shows an indebtedness of $614,423, of which $508,695 is unsecured. The total assets are given as $306,704. They count the real estate at $99,400, and the machinery at $180,235. The mine at Fresno is only valued in the statement at $85,400, covered by attachments. The whole failure is the result of extravagant management. The breaking up of the company involves San Francisco and London financiers and banks. A number of San Francisco machinery firms are also sufferers. The deal for the sale of the mine and its equipments was managed by W. H. Daily and Frank Gardner, and Gardner figures as a creditor for $207,742, cash advanced. Daily was the local manager. Finally the mine was attached by miners and other creditors, and work was stopped. Then the attorney of the San Francisco Board of Trade petitioned the United States Circuit Court to declare the company insolvent. A large amount of money was sunk in exploiting the mine and conducting the smelter.'

"Fifth. That the statements contained in each of said articles of and concerning this plaintiff were and are wholly false and untrue, and that by reason thereof plaintiff has been prevented from following his usual vocation, as set forth in paragraph first hereof, 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 in the sum of $50,000, for which the plaintiff demands judgment against the defendant.”

To this complaint the defendant interposed a demurrer, which was overruled, and from the judgment entered thereon the defendant appeals.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGH-
LIN, O'BRIEN, and INGRAHAM, JJ.

Charles E. Lydecker, for appellant.
Joseph P. Nolan, for respondent.

and 122 New York State Reporter O'BRIEN, J. The plaintiff by his innuendo insists that the charge made against him is embezzlement, but we think that the language employed is susceptible of no such meaning, there being nothing therein which would indicate that it was intended to state that the plaintiff had stolen or made away with the money of the mine in any other way than by extravagant management, the gravamen of the charge being that his extravagance startled people and finally got the company into trouble. In speaking of the cause of the failure of the mine, the article states that "the whole failure is the result of extravagant management.”.

Our attention has been called to the recent decision in the Court of Appeals of Morrison v. Smith, 177 N. Y. 366, 69 N. E. 725, wherein it was held (headnote) that:

"When the plaintiff in an action of libel has by innuendo put a meaning upon the alleged libelous publication which is not supported by its language or by proof, the court may nevertheless submit the case to the jury if the article is libelous per se."

Had the articles charged the plaintiff with embezzlement—the meaning which by his innuendo he ascribes to the language used—it would be libelous per se. But disregarding the innuendo, and taking the language in its natural import, if the articles are libelous per se, then it would be the duty of the court to submit the case to the jury. The articles describe the financial condition of the mining company, saying that there were attachments obtained by creditors against it and the indebtedness exceeded the total assets, and then follows language from which the inference is natural that was intended to state that such condition was brought about by the plaintiff's extravagant management; and, as the result, we have the charge against the plaintiff that, by extravagance in handling the business of the company, he caused it to become insolvent.

In Odgers on Libel and Slander (1st Am. Ed. p. 20) it is said: “In cases of libel any words will be presumed defamatory which expose the plaintiff to hatred, contempt, ridicule, or obloquy, which tend to injure him in his profession or trade.

Everything printed or written which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been. The words need not necessarily impute disgraceful conduct to the plaintiff.”

And in Newell on Defamation, Libel and Slander, p. 68, the general doctrine is thus stated :

"Every man has a right to the fruits of his industry, and, by a fair reputation and character in his particular business, to the means of making his industry fruitful. At common law, therefore, an action lies for words which slander a man in his trade or defame him in an honest calling, as to say of a merchant or tradesman he is a bankrupt."

It is alleged that the plaintiff is engaged in important financial and commercial enterprises in the United States, involving the use and management by him of large sums of money intrusted to him by others, and that his reputation has always been that of a competent, energetic, and honorable man of business, and one to whom the management of large enterprises, requiring the exercise of economy, good judgment, and integrity, could be safely intrusted. It is also alleged that, by reason of the statements contained in the articles which are

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