Opinion
May 29, 1913.
Hugo H. Ritterbusch, for the appellant.
J. Aspinwall Hodge, for the respondent.
If, by any reasonable construction of the article, it could be said that plaintiff was charged, in his professional capacity, with an act involving such a degree of moral turpitude as would tend to bring him into disrepute with honorable men, I should be willing to admit, although but a single isolated act of such character was charged, that it would be libelous ( Church v. Tribune Assn., 135 App. Div. 30, 32), and that the fact that no general professional incapacity was imputed would be of no significance. But, it appears that plaintiff was employed by and prepared the alleged defective plans under direction of his employer, the city, after plans which included a filtration plant had been rejected because of their expense, and that such defective plans omitted the filtration plant at the instance and to suit the purposes of the city. Under these circumstances it cannot be said that plaintiff exercised any professional discretion in preparing the plans alleged to have been defective, or that he did anything more than comply with the express directions given to him by those whom he served, assuming no professional responsibility for the alleged hygienic deficiency of the plans because of the absence of the filtration plant.
It is nowhere alleged that plaintiff was ever an official of the city or even that he was generally referred to or known as such. Plaintiff, therefore, can have no benefit from the innuendoes which attempt to enlarge the plain meaning of the words of the article. For the same reason that portion of the article referring to the alleged insult to "Kate" cannot be taken as in any way referring to plaintiff. The article, thus interpreted, contains nothing libelous per se, and as there is no special damage alleged, the demurrer was good.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, P.J., CLARKE, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.