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and 140 New York State Reporter supervised the business as their employé. The inference is that the books belonged to the firm, and not to him; and a further answer to this contention is that, if he owed to them the duty of accounting, the books appear to have been accepted by the members of the firm as an accounting, and plaintiff seeks now to go behind those books upon the theory that his intestate was fraudulently deceived by appellant concerning the same, and in the circumstances he is not materially aided by the fact that perhaps the partners could have insisted upon an accounting by appellant. The plaintiff, therefore, fails to show that he has a cause of action or is entitled to any relief against the appellant, and therefore he is not entitled to the examination. Moreover, if he has a cause of action for an accounting upon the theory that appellant was a fiduciary agent and intrusted with property and business of the firm, he needs no examination to enable him to frame a complaint, for general allegations of these facts would be sufficient.

It may also be observed, without definitely deciding the question, that it is doubtful whether, if a cause of action existed in favor of the firm against the appellant, the plaintiff could maintain an action to enforce it. The cause of action, if any existed, passed to Joseph H. Sulzbacher, either under the dissolution agreement or as surviving partner, and he alone may maintain the action, unless, perhaps, upon the theory that he participated in the fraudulent acts which give rise to the cause of action. Williams v. Whedon, 109 N. Y. 333, 16 N. E. 365, 4 Am. St. Rep. 460; Secor v. Tradesmen's National Bank, 92 App. Div. 294, 87 N. Y. Supp. 181; Matter of Thieriot, 117 App. Div. 686, 102 N. Y. Supp. 952; Simpson v. Simpson, 44 App. Div. 492, 60 N. Y. Supp. 879; Kastner v. Kastner, 53 App. Div. 293, 65 N. Y. Supp. 756; Russell v. McCall et al., 141 N. Y. 437, 36 N. E. 498, 38 Am. St. Rep. 807. The cause of action, if any there be, existed at the time of the dissolution of the firm, and is not based on any proceedings of Joseph H. Sulzbacher either under the dissolution agreement or as surviving partner. There are general charges of collusion on the part of Joseph H. Sulzbacher with respect to some of the alleged fraudulent acts of the appellant, but the facts are not stated.

It follows that the order should be reversed, with $10 costs and disbursements, and motion to vacate the order for examination granted, with $10 costs. All concur; INGRAHAM, J., in result.

BOSKOWITZ v. ULMANN et al. (Supreme Court, Appellate Division, First Department. November 15, 1907.)

Appeal from Special Term.

Action by Jesse L. Boskowitz, administrator of Ignatz Boskowitz, deceased, against Albert Ulmann and another. From an order denying the motion of said defendant to vacate an order for his examination, to enable plaintiff to frame his complaint, said defendant appeals. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Theodore Baumeister (S. Lachman, on the brief), for appellant. Harold Nathan (John R. Dos Passos, on the brief), for respondent.

PER CURIAM. The appellant was in the employ of the firm of J. H. Sulzbacher & Co., as manager of their main office. This action is brought by the administrator of the deceased partner against Ulmann and the surviving partner, to compel the former to account for alleged fraudulent acts and for secret profits alleged to have been made as such manager and not accounted for to the firm. The action was commenced at the same time plaintiff commenced his action against Anton W. Sulzbacher and Joseph H. Sulzbacher. The papers upon which the order for examination of Ulmann was granted show that plaintiff believes that he has a good cause of action against Ulmann for an accounting for his acts as such manager; but otherwise the affidavits are substantially the same as those upon which the order for the examination of Anton W. Sulzbacher in the action by this plaintiff against him and Joseph H. Sulzbacher, was made, which was involved in the appeal argued and decided herewith. 106 N. Y. Supp. 865. The observations made in the opinion on that appeal with respect to the insufficiency of the affidavits apply with equal force here.

Upon the authority of that opinion, the order should be reversed, with $10 costs and disbursements, and motion to vacate the order for the examination should be granted, with $10 costs.

BOSKOWITZ V. ULMANN et al.

(Supreme Court, Appellate Division, First Department. November 15, 1907.)

Appeal from Special Term.

Action by Jesse L. Boskowitz, administrator of Ignatz Boskowitz, deceased, against Albert Ulmann and another. From an order denying a motion, the codefendant, Joseph Sulzbacher, surviving partner of J. H. Sulzbacher & Co., appeals. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Charles L. Craig, for appellant.
Harold Nathan (John R. Dos Passos, on the brief), for respondent.

PER CURIAM. This is an appeal by the defendant Joseph H. Sulzbacher from an order denying his motion, separately made, to vacate an order for the examination of his codefendant Ulmann, to enable plaintiff to frame a complaint against both of them. The record is otherwise in all material respects the same as that presented on the appeal by the defendant Ulmann, argued and decided herewith. 106 N. Y. Supp. 870. Upon the authority of the decision made on that appeal, the order should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

and 140 New York State Reporter

BOSKOWITZ v. SULZBACHER et al. (Supreme Court, Appellate Division, First Department. November 15, 1907.)

Appeal from Special Term.

Action by Jesse L. Boskowitz, administrator of Ignatz Boskowitz, deceased, against Anton W. Sulzbacher and another. From an order denying a motion, the codefendant, Joseph Sulzbacher, surviving partner of J. H. Sulzbacher & Co., appeals. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Charles L. Craig, for appellant.
Harold Nathan (John R. Dos Passos, on the brief), for respondent.

PER CURIAM. This is an appeal by the defendant Joseph H, Sulzbacher from an order denying his motion, separately made, to vacate the order for the examination of his codefendant, to enable plaintiff to frame a complaint against both of them. The record is otherwise in all material respects the same as that presented on the appeal by the defendant Anton W. Sulzbacher, argued and decided herewith. 106 N. Y. Supp. 865.

Upon the authority of the opinion deciding the other appeal, the order should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

(J5 Misc. Rep. 567.)

BREEN V. NEW YORK HERALD CO. (Supreme Court, Special Term, New York County. August, 1907.) 1. LIBEL-COMPLAINT-DEMURRER.

Where defendant in an action for libel demurs to the complaint, the question to be determined is whether the natural import of the article

is libelous as it strikes the mind of the average reader. 2. SAME.

A newspaper article was entitled “Blackmail is Easy by Police System," and a portrait of plaintiff was published, with others, with the words "Men Mentioned in the Police Blackmail Scandal, and the Man Who Knows,” printed beneath them. The individuals whose portraits were published were described, some as keepers of gambling houses who paid police to escape prosecution, and others as members of the police charged with corruption. The article stated that as part of the system an arrest was made and a small fine imposed on a plea of guilty, and plaintiff was stated to be the magistrate before whom the prosecution was carried on, and also instanced the procedure for the collection of blackmail where a complaint of robbery is made by a patron of a disreputable resort, and states that on the calling of the case in court a lawyer is furnished through the police sergeant who fixes the case. Held to import to the ordinary mind that the magistrate must have something to do with the

settlement, so that a demurrer to the complaint should be overruled. Action by Matthew P. Breen against the New York Herald Company. Demurrer to complaint overruled.

William McArthur, for plaintiff.
Robert W. Candler, for defendant.

BISCHOFF, J. The argument in support of the demurrer is directed to the unreasonableness of the innuendoes. stated in the complaint, when taken with the matter published. As I view the case, however, certain of the innuendoes are supported by the publication, so far as to justify a finding, in reason, that the meaning attributed by the complaint is the true meaning, and the demurrer must be overruled.

The article complained of describes a system of police blackmail. It is headed "Blackmail is Easy by Police System,” following which heading are several photographs of individuals, with their names, the central figure being the largest—a full-length picture of a policeman—and below are the words, "Men Mentioned in the Police Blackmail Scandal, and the Man who knows." The plaintiff, a police magistrate, is portrayed among the rest; and, to the ordinary reader of the article, reference is obviously made to him as one of the “Men Mentioned in the Police Blackmail Scandal.” The words used, in connection with the photographs and their placing, can have no other meaning.

In the article there are allusions to the individuals whose photographs are displayed with the plaintiff, and they are described, some as keepers of gambling houses whose interests lead them to pay money to the police to avoid prosecution, and others as members of the police force involved in more or less open charges of corruption. No reference to the plaintiff is made by name, except in one minor instance toward the end of the article; but, when describing the operation of the blackmailing system, the publication states that as one of the steps in the scheme an arrest is made, a plea of guilty entered to the lesser of two complaints before the magistrate, and a small fine is imposed and paid. Here the reader of the article finds a connection between the magistrate and the "system,” so called. The headlines and the pictorial display have prepared his mind for revelations which touch a city magistrate, and the manner in which the magistrate is finally introduced points to sinister dealing. This very part of the article states that "it is a pretty serious matter for a person to be convicted of breaking the excise law.” Following this comes the announced procedure of imposing a small fine. The impression made, as may be reasonably assumed, is that the magistrate was associated with the blackmailers; otherwise, there is no point to his careful portrayal among the “men mentioned in the police blackmail scandal.”

Again, the article instances the procedure for the collection of blackmail where a complaint of robbery is made by a patron of a disreputable resort; and it is stated that, when the case is called in court, a lawver is furnished, through the police sergeant, who succeeds in "fixing” the case. Taken with the headlines, this imports to the average reader that the magistrate must have something to do with the unlawful settlement; and, without pursuing the subject in all its phases, as suggested by the innuendoes pleaded, it is apparent that the complaint reasonably tenders an issue of fact as to whether the article does not, by its headlines and pictures, in connection with all the published matter, charge the plaintiff with participation in a criminal conspiracy.

Upon this demurrer the question is, not whether the publication can be found, by a keen and discriminating intelligence, to charge nothing when closely read, but whether its natural import is libelous as it

and 140 New York State Reporter strikes the mind of the average reader of a newspaper. Turton v. New York Rec. Co., 144 N. Y. 144, 38 N. E. 1009; De Sando v. New York Herald Co., 88 App. Div. 492, 85 N. Y. Supp. 111. So tested, the complaint states a cause of action.

Demurrer overruled, with costs, with leave to defendant to plead over, upon payment of costs, within 20 days.

(55 Misc. Rep. 570.)

LYONS V. NEW YORK HERALD CO. (Supreme Court, Special Term, New York County. August, 1907.) LIBEL-COMPLAINT-DEMURRER.

The complaint in a libel suit set up a publication charging a street car conductor to have been in complicity with pickpockets on a certain or casion, and the complaint averred that the matter was published concerning plaintiff, who was a conductor of the particular car which was the scene of the theft. Held, that a demurrer to the complaint on the ground that there was no sufficient identification of the plaintiff as conductor would be overruled.

Action by John Lyons against the New York Herald Company. Demurrer to complaint overruled.

Maurice Simmons, for plaintiff.
Robert W. Candler, for defendant.

BISCHOFF, J. The matter published concerning the plaintiff charges that he, the conductor of a street car, was in complicity with pickpockets upon the car. The defendant makes no contention that the words published were not libelous per se; and, indeed, there can be no reasonable ground for argument against the sufficiency of the complaint, so far. It is urged, however, that there is no actual identification of the plaintiff as the "conductor" in the article published, and that, upon the question of identity, the words employed fail to afford an indication that the plaintiff was intended which may be borne out by proof to connect him with the articles.

The averment that the matter was published concerning the plaintiff suffices, if his identity is indicated by circumstances in the article which are susceptible of direct proof at the trial. Corr v. Sun Pub. Co., 177 N. Y. 131, 69 N. E. 288; Code Civ. Proc. $ 535. Here the articles, as alleged, described a certain car-theft inquiry; and the libel was directed to the conductor of the car. Certainly the circumstances indicate the availability of evidence to show that this plaintiff was the conductor of the particular car which was the scene of the theft, and this is enough. Nunnally v. New Yorker Staats-Zeitung, 111 App. Div. 482, 97 N. Y. Supp. 911, 186 N. Y. 532, 78 N. E. 1107; Townes v. New York Evening Journal P. Co., 109 App. Div. 852,96 N. Y. Supp. 822.

The demurrer must be overruled, with costs, with leave to defendant to plead over upon payment of costs within 20 days.

Demurrer overruled, with costs, with leave to defendant to plead over upon payment of costs within 20 days.

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