MacDonald v. Sun Printing & Publishing Ass'n

111 A.D. 465, 98 N.Y.S. 116, 1906 N.Y. App. Div. LEXIS 198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1906
• Docket: No. 2
• Status: Published

Opinion

Jenks, J.:

The 'plaintiff. alleges that he was graduated from the University of Rochester and from the Union Theological Seminary,'and that thereafter, in this country and in Europe, he was a university student of medical subjects;, especially of a medico-legal and crimino4 ’ logical nature; that he served the government at Washington as a clerk un'der the title “Specialist in Education as a Preventive .of Pauperism and Crime.” He further alleges that he- was widely and favorably known here, in Canada and in Europe, both ás a student of criminology and a writer of various publications on that and kindred subjects. He complains that the defendant had printed certain -articles relating to his vocation, work and writings, which were followed by the publication of the letter upon which his action is brought. .

The word'“ humbug ” has become accepted as good English, and has an approved and well-understood meaning as impostor, deceiver, cheat.. (Cent. Dict., Worcester’s Dict., Standard Dict., Stormonth’s Dict., Imperial Dict., March’s Thesaurus.) Writers of pure and' elegant English, like Lowell and Whipple, use it without the apology of quotation marks or of italics. In Nolte v. Herter (65 Ill. App. 430) the appellant used- the -word “humbug” in conversation, arid the court say: “ Humbug is an imposition, imposture, deception; and as a verb, signifies to impose upon, to cozen, to swindle, all implying intention to misrepresent, by the assertion of what is not’ the actual condition or the suppression or concealment of what is.” “Pseudo” is derived from the Greek “pseudein,” to- cheat, to deceive, and is defined as “a quasi-prefix, in compounds of Greek origin,, meaning ‘ false,’ ‘ counterfeit,’ ‘ spurious/ ‘ sham.’ ” - It is freely used as an English prefix, with words of any origin. (Cent. Dict.) Stormonth, a most accurate lexicographer, derives it from the' Greek “pseudes,” lying, false ; and defines it as “a word frequently prefixed' to another and meaning 1 false, spurious.’ ” I think that the letter brands the plaintiff as an impostor, and as a false or sham scientist, and that, therefore, it is" a. libel upon its face. In Smith v. Stewart (41 Minn. 7) the words held libelous per se were' “irresponsible, unadulterated first class humbug and fraud.” In Meas v. Johnson (185 Penn. St. 12) the words were: “You are a first class fraud and of the first water.” In Commonwealth v. Clap (4 Mass. 163) the term was “ liar, scoundrel, cheat and. swindler.” The books contain many other cases where equipollent words were pronounced libelous per se. I think it clear that the letter passed - beyond any legitimate criticism of the work of the plaintiff to stamp him personally as an impostor, and that it cannot be held as a matter of law that the plaintiff pleads no cause of action therefor. (Triggs v. Sun Printing & Pub. Assn., 179 N. Y. 144, 154; Whistler v. Ruskin [Times for Nov. 27, 1878], cited in Odgers Lib. & Sland. [3d ed.] 35.) The words had “ a tendency to hurt or are calculated to prejudice ” the plaintiff in his calling, and are actionable per se. (Moore v. Francis, 121 N. Y. 199.)

In the view I take of this demurrer it is not necessary to-pass upon the point whether special damages are well pleaded. For the plaintiff was not bound to plead them at all. (Moore v. Francis, supra, 204; Baylies Code Pl. & Pr. [2d ed.] 239, 240, and authorities cited.) When pleaded it seems that the rule is the same as in an action for slander. (Newell Sland. & Lib. [2d ed.] 868.)

The interlocutory judgment is reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to plead over within twenty days.

Hooker, G-atnor, ¡Rich and Miller, JJ., concurred.

Interlocutory judgment reversed, with costs,, and demurrer overruled, with costs, with leave- to the defendant to plead over within twenty days upon payment.