McLaughlin, J.:
The first defense demurred to alleges, in substance, that the defendant before writing the letter addressed to the mayor, several times requested the plaintiff to have the picture and measurements of the Duffy boy removed from the Rogues’ Gallery, which the plaintiff refused to do, notwithstanding a decision of the Supreme Court, in an action .to which the plaintiff was a party, to the effect that su.ch picturei. and measurements could not legally be retained ; that ■ the process of measuring and photographing persons arrested, but not convicted, had, under the direction of the plaintiff, been continued after that decision;' that the plaintiff had advised a ■ police lieutenant named Kuhne, who had been convicted of contempt of court, to. resist the court orders and to refuse to apologize and [309]*309thereby purge himself of contempt, and “ believing that the plaintiff was a person without any conception of his duties and without respect or regard for the laws, the defendant wrote the letter complained of to the Mayor, the superior officer of the plaintiff ; that the matters of fact stated ” in the letter and the statement “ are true and the opinions therein fair comment on the said acts of the plaintiff, and only such as to bring properly before the said Mayor the official misconduct of the plaintiff, and were . and are without malice; and the said statement and the said letter were privileged.”
The second defense demurred to alleges that the statements in tlie articles complained of are true; that, in'November, 1907, the police authorities under the command of the plaintiff, police commissioner, photographed and measured persons who had been arrested but not convicted of crime, and in the case of one Jenkins photographed and measured a man who was at large on bail; that the illegality of these proceedings was called to the attention of the plaintiff; that the plaintiff “ advised one August Kuhne to defy the judgment of the Supreme Court convicting him of contempt of court for refusing to obey a writ of habeas corpus requiring him to produce the body of the said Frank Jenkins, the offense consisting of photographing said Jenkins subsequent to the service of said writ, the purpose of which had been to prevent such an illegal act; ” paid Kuhne’s fine therefor; granted him leave of absence from duty while he was serving a term of thirty days’ imprisonment imposed by the court, and promised to promote him thereafter to the office of police captain; the facts concerning the numerous arrests of Duffy and defendant’s letters relative thereto, as substantially set forth in defendant’s letter to the .mayor; that the plaintiff had received from the proper officials the full record of the arrests, charges and disposition of the charges made against Duffy, which showed no conviction of any crime ; that notwithstanding, the plaintiff wrote to the defendant refusing, and openly refused, to remove the photograph and measurements and stated that the treatment of Duffy was justified; and that on or about February 6,1906, an injunction was granted by the Supreme Court restraining plaintiff and his subordinates from entering certain specified premises and that with full knowledge of such injunction the plaintiff and his subordinates acting under his direction, violated and wholly disregarded the [310]*310' same and entered said premises, annoyed,, harassed and. oppressed the tenants.
Neither of the defenses is pleaded as a partial defense, nor does either specify which of the causes of action alleged it- purports to answer. Upon demurrer, therefore, each must be treated as a compíete defense to the entire complaint and its sufficiency determined 'when-tested in that way. (Thompson v. Halbert, 109 N. Y. 329; Lapetina v. Santangelo, 124 App. Div. 519; Price v. Derbyshire Coffee Co., 128 id. 472.) The defenses are not aided in any way by the allegation that the articles complained of are true, because no facts are stated in such allegation. It is a conclusion - and nothing mofe. (Wachter v. Quenzer, 29 N. Y. 552.) The first defense was evidently intended as a plea of qualified privilege, and the second as a justification. -Many of the same questions arise in each case and the defense of justification may conveniently-be considered first.
It is fundamental that a plea in justification must be as broad as the charge. (Xavier v. Oliver, 80 App. Div. 292; Young v. Fox, 26 id. 261.) In determining what the charge - is the scope and object of the whole article must be considered, and such a construction put upon the language used as would naturally be given to it. (More v. Bennett, 48 N. Y. 472.) In the articles here complained of many abusive terms are used, but in the absence of innuendoes only such statements- as I consider libelous per se and refer unequivocally to the plaintiff will be considered. '
1. The first-libelous charge is one of “scoundrelism.” It is true the plaintiff is not mentioned by name in connection with the use of this term, but reference to him is so plain and unmistakable that .“ he who runs may read.” ' I do not see how one can read the letter without being irresistibly led tó the conclusion that the word “ scoundrelism ”■ is directed towards the 'plaintiff and no -one else. . .Wliat the writer had in mind and what he was compláining of is evident from the first sentence in the letter“ I had written a letter,” he says, “to the.Governor of the State to get redress for the scoundrelism hereinafter mentioned through the power of removal of city officials which he possesses, but on second thought'I concluded to ■withhold it and.first ask for such redress through you.” What is the “ Scoundrelism hereinafter mentioned- ? ” The refusal of the plain[311]*311tiff as police commissioner to remove the' photograph and record of the Duffy boy from the Rogues’ Gallery. The-plaintiff is the only one "the writer is complaining of, and it is his removal that is referred to. The word scoundrel is libelous per se. (25 Cyc. 260, 261; Loveland v. Hosmer, 8 How. Pr. 215.) There is no attempt to justify this charge in the defense pleaded, and if the conclusion be correct that the charge unmistakably refers to the plaintiff, then'' the defense is insufficient. "
2. There is no justification of the charge that “ the Police Commissioner is doing all he can to make it impossible for him to lead an honest life and make an honest, living, and to force him instead to a life of crime.” This expressly refers to the plaintiff, is libelous per se, and proof of all the facts alleged in the defense would not justify a jury in finding that the charge was true. Indeed, the only charge against the plaintiff, so far as the Duffy boy is concerned, was his refusal to remove his photograph and measurements from the Rogues’ Gallery and by reason thereof his arrests followed. I take it no one would seriously contend that proof of that fact would justify a finding that the plaintiff was doing all he could to make it impossible for Duffy to lead an honest life or make an honest living, but instead to lead a life of crime.
3. The charge that “ incompetents, corruptionists, and sometimes buffoons who are put in rulersliip over ” the men on the police force, and compel them against their wish to make false arrests, while it may refer to others, it unquestionably refers to and includes the plaintiff, and because it may refer to others is none the less a" libel upon him.
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McLaughlin, J.:
The first defense demurred to alleges, in substance, that the defendant before writing the letter addressed to the mayor, several times requested the plaintiff to have the picture and measurements of the Duffy boy removed from the Rogues’ Gallery, which the plaintiff refused to do, notwithstanding a decision of the Supreme Court, in an action .to which the plaintiff was a party, to the effect that su.ch picturei. and measurements could not legally be retained ; that ■ the process of measuring and photographing persons arrested, but not convicted, had, under the direction of the plaintiff, been continued after that decision;' that the plaintiff had advised a ■ police lieutenant named Kuhne, who had been convicted of contempt of court, to. resist the court orders and to refuse to apologize and [309]*309thereby purge himself of contempt, and “ believing that the plaintiff was a person without any conception of his duties and without respect or regard for the laws, the defendant wrote the letter complained of to the Mayor, the superior officer of the plaintiff ; that the matters of fact stated ” in the letter and the statement “ are true and the opinions therein fair comment on the said acts of the plaintiff, and only such as to bring properly before the said Mayor the official misconduct of the plaintiff, and were . and are without malice; and the said statement and the said letter were privileged.”
The second defense demurred to alleges that the statements in tlie articles complained of are true; that, in'November, 1907, the police authorities under the command of the plaintiff, police commissioner, photographed and measured persons who had been arrested but not convicted of crime, and in the case of one Jenkins photographed and measured a man who was at large on bail; that the illegality of these proceedings was called to the attention of the plaintiff; that the plaintiff “ advised one August Kuhne to defy the judgment of the Supreme Court convicting him of contempt of court for refusing to obey a writ of habeas corpus requiring him to produce the body of the said Frank Jenkins, the offense consisting of photographing said Jenkins subsequent to the service of said writ, the purpose of which had been to prevent such an illegal act; ” paid Kuhne’s fine therefor; granted him leave of absence from duty while he was serving a term of thirty days’ imprisonment imposed by the court, and promised to promote him thereafter to the office of police captain; the facts concerning the numerous arrests of Duffy and defendant’s letters relative thereto, as substantially set forth in defendant’s letter to the .mayor; that the plaintiff had received from the proper officials the full record of the arrests, charges and disposition of the charges made against Duffy, which showed no conviction of any crime ; that notwithstanding, the plaintiff wrote to the defendant refusing, and openly refused, to remove the photograph and measurements and stated that the treatment of Duffy was justified; and that on or about February 6,1906, an injunction was granted by the Supreme Court restraining plaintiff and his subordinates from entering certain specified premises and that with full knowledge of such injunction the plaintiff and his subordinates acting under his direction, violated and wholly disregarded the [310]*310' same and entered said premises, annoyed,, harassed and. oppressed the tenants.
Neither of the defenses is pleaded as a partial defense, nor does either specify which of the causes of action alleged it- purports to answer. Upon demurrer, therefore, each must be treated as a compíete defense to the entire complaint and its sufficiency determined 'when-tested in that way. (Thompson v. Halbert, 109 N. Y. 329; Lapetina v. Santangelo, 124 App. Div. 519; Price v. Derbyshire Coffee Co., 128 id. 472.) The defenses are not aided in any way by the allegation that the articles complained of are true, because no facts are stated in such allegation. It is a conclusion - and nothing mofe. (Wachter v. Quenzer, 29 N. Y. 552.) The first defense was evidently intended as a plea of qualified privilege, and the second as a justification. -Many of the same questions arise in each case and the defense of justification may conveniently-be considered first.
It is fundamental that a plea in justification must be as broad as the charge. (Xavier v. Oliver, 80 App. Div. 292; Young v. Fox, 26 id. 261.) In determining what the charge - is the scope and object of the whole article must be considered, and such a construction put upon the language used as would naturally be given to it. (More v. Bennett, 48 N. Y. 472.) In the articles here complained of many abusive terms are used, but in the absence of innuendoes only such statements- as I consider libelous per se and refer unequivocally to the plaintiff will be considered. '
1. The first-libelous charge is one of “scoundrelism.” It is true the plaintiff is not mentioned by name in connection with the use of this term, but reference to him is so plain and unmistakable that .“ he who runs may read.” ' I do not see how one can read the letter without being irresistibly led tó the conclusion that the word “ scoundrelism ”■ is directed towards the 'plaintiff and no -one else. . .Wliat the writer had in mind and what he was compláining of is evident from the first sentence in the letter“ I had written a letter,” he says, “to the.Governor of the State to get redress for the scoundrelism hereinafter mentioned through the power of removal of city officials which he possesses, but on second thought'I concluded to ■withhold it and.first ask for such redress through you.” What is the “ Scoundrelism hereinafter mentioned- ? ” The refusal of the plain[311]*311tiff as police commissioner to remove the' photograph and record of the Duffy boy from the Rogues’ Gallery. The-plaintiff is the only one "the writer is complaining of, and it is his removal that is referred to. The word scoundrel is libelous per se. (25 Cyc. 260, 261; Loveland v. Hosmer, 8 How. Pr. 215.) There is no attempt to justify this charge in the defense pleaded, and if the conclusion be correct that the charge unmistakably refers to the plaintiff, then'' the defense is insufficient. "
2. There is no justification of the charge that “ the Police Commissioner is doing all he can to make it impossible for him to lead an honest life and make an honest, living, and to force him instead to a life of crime.” This expressly refers to the plaintiff, is libelous per se, and proof of all the facts alleged in the defense would not justify a jury in finding that the charge was true. Indeed, the only charge against the plaintiff, so far as the Duffy boy is concerned, was his refusal to remove his photograph and measurements from the Rogues’ Gallery and by reason thereof his arrests followed. I take it no one would seriously contend that proof of that fact would justify a finding that the plaintiff was doing all he could to make it impossible for Duffy to lead an honest life or make an honest living, but instead to lead a life of crime.
3. The charge that “ incompetents, corruptionists, and sometimes buffoons who are put in rulersliip over ” the men on the police force, and compel them against their wish to make false arrests, while it may refer to others, it unquestionably refers to and includes the plaintiff, and because it may refer to others is none the less a" libel upon him. The charge is that arrests “ are being made,”— the present,— at which time the commissioner was at the head of the police department. How can it be said that this did not refer to him ? He was the one, as already indicated, of whom the writer was complaining and whose removal from office was sought. If these epithets refer to and include him, as I think they do, then there is no attempt at justification, and this, I understand, the respondent concedes.
4. “ It is an ordinary, thing for the Police Commissioner to refuse to obéy the decisions of the courts and compel the police force to disobey them.” Ho attempt is made to justify the charge, certainly not in so far as it states that the police commissioner compels the" [312]*312police force to disobey the decisions of the courts. ISTor do -1 think facts are stated which justify the charge that “ the despotism and lawlessness of the Police Commissioner is shocking ” or that “ he is possessed of the most, dangerous and destructive delusion that officials can entertain in a free government, namely, that he is under no legal restraint whatever, but may do as he wills, instead of only wliat the, law permits, and that only in the manner it preseniles.”
It is, however, urged by the respondent that if the defense is a complete justification of any of the libelous charges it is not demurrable. This is not a correct' statement of the law, as I understand it. The justification must be as broad as the libel itself, that is, of all the libelous charges made.. The authorities. referred to (Lanpher v. Clark, 149 N. Y. 472; Gressman v. Morning Journal Assn., 197 id. 474) and others, involved a question of proof and not pleading.
It seems to me, therefore, that the answer does not justify, at least so far as the charges above specified are concerned, and if that be true, then ■ a complete defense is not set forth. The plaintiff’s demurrer to the second defense pleaded should have been' sustained.
The sufficiency, of the first defense remains to be considered. The court at Special Term (68 Misc. Rep. 565) seems to have been of the opinion that the letter to-the mayor was privileged as a confidential communication written by a citizen having an interést in the matter discussed to a superior officer having the power of removal. ■ But whatever privilege might otherwise have attached to the communication was destroyed when the defendant gave the same out for publication before it was received by the mayor. It is suggested by respondent’s counsel that the publication is denied. It is denied in another part of the answer but not in the defense under consideration.- Moreover, there was, in any event, no such privilege attaching to the statement constituting the second cause of action. The real question presented by this defense is whether the articles were privileged as fair comments on the act of a public official. If the statements- of facts were true and the criticism . fair and honest, without malice, the defense of privilege would be good. (Hamilton v. Eno, 81 N. Y. 116; Mattice v. Wilcox, 147 id. 624; Hoey v. N. Y. Times Co., 138 App. Div. 149.) But under the guise of privilege the character and motives of the official criticised may not be attacked. As was said in Hamilton v. Eno (supra), “We are [313]*313of the opinion that the official act of a public functionary may be freely criticised.and entire freedom of expression used in argument, sarcasm and ridicule upon the act itself; and that then the occasion will excuse everything but actual malice arid evil purpose'in the critic. We are of the opinion that the occasion will not of itself excuse an aspersive attack upon the character and motives of the officer; and that to be excused the critic must show the truth of what he has uttered of that kind.” Whether the bounds of fair criticism have been exceeded or not is a question of law for the court. (Hoey v. N. Y. Times Co., supra.)
Instances have already heen pointed out where the statements made were not fair comments on the acts of the plaintiff, but were defamatory of his character, i. e., (1) charging him with scoundrelism; (2) with being incompetent, corrupt and a buffoon ; (3) being a des-' pot and lawless; (4) possessed of the. most dangerous and destructive delusion that an official can entertain in a free government.
My conclusion, therefore, is that neither of the defenses demurred to is a complete defense to the cause of action set out in the complaint.
It follows that the interlocutory judgment appealed from should be reversed, with costs,, and the demurrer sustained, with costs, with leave to the defendant to serve an amended answer upon payment of costs in this court and in the court below.
Ingbaham, P. J., and Laughlin, J., concurred; Millee and Dowling, JJ'., dissented.