App. Div.]

Second Department, March, 1906.

representative capacity. I think that such deposits are not within the purview of the statutory expression, sums of money received. It is true that the term "moneys," as used in bequests and elsewhere, in the absence of qualifying or limiting expressions, has been held broad enough to include deposits in banks. In Mann v. Executors of Mann (1 Johns. Ch. 231) Chancellor KENT, in construing a will, said that "perhaps it would be proper to extend the term to money deposited in bank." See, too, Beck v. McGillis (9. Barb. 59), where the term "moneys" was held to embrace cash ("using the term in its popular sense ") which the testator had on deposit in bank. I may add, however, that there is a distinction drawn between deposits in a bank and in a savings bank. In Beatty's Exr. v. Lalor (15 N. J. Eq. 108) the chancellor says (pp. 110, 111): "The first clause will include the cash in the house, whether in specie or notes, the gold in the trunk at bank, and the deposit in bank. It will not include the money in the savings fund; that is in the nature of an investment drawing interest, and is not usually subject to the immediate order of the owner, like money deposited at bank, but can only be called in, like other investments, upon notice." This distinction eliminates as to such deposits the feature that induced the chancellor to say "perhaps " the term "moneys" applied to bank deposits, for he says in Mann's Case (supra), "for that is cash, and considered and used as cash placed there for safe keeping, in preference to the chest of the owner." There is a manifest difference between the construction of a term of bequest and a statutory term that can be satisfied without its application to cash put out with a savings bank. Even if the term "money" used in this statute were generic enough to include such deposits, certainly for the reasons stated they cannot be regarded as "money received." The right to receive a due that is secure is not the receipt thereof. I am of opinion that these deposits were not the basis for commission.

The securities cannot be regarded as money within the purview of this statute. (McAlpine v. Potter, supra.)

It is true that the decree permits the administrator to turn over the securities in specie, but this does not make them a basis for commission within the doctrine of McAlpine v. Potter (supra) that in such case they may be regarded as cash accepted by the legatee. This decree is not for the legatee, but for the executor who

Second Department, March, 1906.

[Vol. 111. steps into the shoes of the administrator perforce of the probate of the will. He takes "the unqualified legal title of all personalty not specifically bequeathed, and a qualified legal title to that which is so bequeathed." (Blood v. Kane, 130 N. Y. 514.) I think that mere omission of a legatee to object to a decree that transfers securities in specie from this administrator to the executor is not equivalent to her acceptance of the securities as cash. There is no payment or distribution to the legatee. The learned counsel for the respondent insists that the position of this administrator is analagous to that of a temporary administrator, and that he should receive these cominissions because a temporary administrator is entitled to commissions, not only upon actual cash passing through his hands, but upon the value of the property that he cares for and turns over to his successor. I do not agree to the analogy. This administrator was appointed, qualified and served as a permanent administrator. The fact that his tenure was temporary in that it was cut off by the probate of the will cannot affect the character of his representative capacity. There is a well-recognized distinction between a temporary administrator and the permanent administrator. (See Jessup Surr. Pr. [2d ed.] 644; Code Civ. Proc. § 2670.) And the distinction between the commissions that may be awarded to one or the other is based upon the difference of their functions. (Jessup, supra, 1485, and authorities cited.)

The order is reversed, without costs. The decree is reversed so far as it relates to commissions, without costs of this appeal to either party, and proceedings remitted to the Surrogate's Court of Kings county to be disposed of in accord with this opinion.

HOOKER, GAYNOR and RICH, JJ., concurred; GAYNOR, J., however, thinks that the fixing of the commissions should be left to the surrogate without any opinion from this court; MILLER, J., dissented.

Decree of the Surrogate's Court of Kings county reversed so far as it relates to commissions, without costs of this appeal to either party, and proceedings remitted to the Surrogate's Court of Kings county to be disposed of in accordance with opinion of JENKS, J.

App. Div.]

Second Department, March, 1906.

ARTHUR MACDONALD, Appellant, v. SUN PRINTING AND PUBLISHING ASSOCIATION, Respondent. (No. 2.)

Second Department, March 16, 1906.

Libel - publication calling scientist a "humbug" and "pseudoscientist."

A publication stating of a scientist that he is a patho-social humbug" and a "pseudo-scientist" is calculated to injure such person in his calling, and is libelous per se. A complaint in an action for libel thereon is not demurrable. APPEAL by the plaintiff, Arthur MacDonald, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk in the county of Kings on the 15th day of July, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer that the complaint does not state facts sufficient to constitute a cause of action. The action is for a libel in the publication by the defendant of the following:

"CONGRESS And the PathO-SOCIAL HUMBUG.

"To the Editor of the New York Sun-Sir: I was very much pleased to see your vigorous and healthy editorial in the Sun of Feb. 18, exposing the patho-social humbug and 'specialist in education,' Arthur MacDonald. There is indeed cause for wonderment that his filthy nonsense should have been tolerated for so long a period. As an apostle of Lombrosian doctrines he has the distinction of being, perhaps, both the shallowest and cheekiest American promulgator of the half truths and whole falsehoods, the fallacies and follies, of this Italian School of Degeneracy. 'Doctor' Arthur MacDonald is never so happy as when he can delve in the mire and mud of derelict humanity, but for the bystanders, this horrible example' for one, is not a useful or instructive exhibit. That any committees of Congress should fail to appreciate the nauseous character of this individual's 'work' is to be deplored by decent people, and the writer sincerely hopes that The Sun will continue fearlessly to expose this persistent self-advertiser and psuedo-scientist.

"NEW YORK, Feb. 19.

ANTHROPOS."

APP. DIV.-VOL. CXI. 30

Second Department, March, 1906..

[Vol. 111.

Wales F. Severance, for the appellant.

Franklin Bartlett, for the respondent.

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 criminological nature; that he served the government at Washington as a clerk under 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 as 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. Ilerter (65 Ill. App. 430) the appellant used the word "humbug" in conversation, and 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 '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

App. Div.]

Second Department, March, 1906.

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, GAYNOR, 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.

ARTHUR MACDONALD, Appellant, v. SUN PRINTING and Publishing ASSOCIATION, Respondent. (No. 3.)

Second Department, March 16, 1906.

Libel-article insinuating lewd motives to scientist-complaint based on such article, when not demurrable.

A published article, which insinuates that a scientist, in preferring to take physical measurements of the persons of girls rather than boys, and particularly girls over sixteen years of age, was actuated by indecent and lewd motives, may be libelous, and it is error to sustain a demurrer to a complaint on such publication. The question of the libelous character of such publication is for the jury.