Opinion
January, 1920.
Present — Mills, Rich, Blackmar, Kelly and Jaycox, JJ.
Order unanimously affirmed, with ten dollars costs and disbursements. The complaint contains an allegation that plaintiff is the corporation counsel of the city of Newburgh. In deciding, therefore, whether the alleged libel is susceptible of the innuendoes pleaded in the complaint, that fact may be taken into consideration. Nothing else, outside of the article itself, may be considered. The question as to whether defendant is entitled to the qualified privilege given to criticism of the conduct of a public official is not available on a demurrer to a complaint, for privilege is new matter that must be pleaded as a defense in the answer. If a complaint shows an absolute privilege on its face it is demurrable, but not if it shows facts from which an inference of a qualified privilege may be drawn, because even in the case of a qualified privilege it still remains a question of fact whether the words were spoken with actual malice. We think it libelous to charge that a corporation counsel is working against the interests of the community that employs him; that the progress of the community in business or population is handicapped by unscrupulous men (of whom plaintiff is one) who have controlled politics for the past forty years; and that the government of the municipality is for a ring (of whom plaintiff is one) who care nothing for the interests of the taxpayers. The general allegation in the complaint that these words were spoken of and concerning the plaintiff is sufficient under section 535, Code Civil Procedure, to enable him to establish facts which would show that the published words indicated to the popular mind that he was a member of the alleged ring, that he was one of the alleged unscrupulous men, and that he was one of those who were working against the best interests of the municipality. We do not think that the allegation that the trial was conducted as a joke, without an allegation of other facts showing upon which side plaintiff was employed or what the nature of the charge was, is libelous per se; nor were there other facts stated by way of colloquium which might make the allegation of the receipt of $15 a week for clerk hire, with $1,800 extra compensation in the guise of expenses in certiorari proceedings, libelous. We do not think that the wording of the alleged libelous publication, together with the fact that plaintiff was the corporation counsel of the city of Newburgh, sufficient to sustain the innuendo to its full extent. Nevertheless, as the publication is libelous per se, the complaint states a cause of action. ( Morrison v. Smith, 177 N.Y. 366.)