App. Div.] Second Department, February, 1912. One engaged in a mercantile business has as much right to recover for such libel as if he belonged to a learned profession. Plaintiff suing for libel need not allege that the article was not privileged, the defense of privilege resting upon the defendant. APPEAL by the defendant, Thomas W. Butts, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of December, 1911, denying the defendant's motion for judgment on the pleadings. P. J. Dobson [Walter P. Vining with him on the brief], for the appellant. Louis Ehrenberg, for the respondent. WOODWARD, J.: The defendant moved at Special Term for judgment dismissing the plaintiff's complaint, contending that although the plaintiff seeks to recover for an alleged libel, the complaint fails to state a cause of action. It appears that the plaintiff was in the employ of the United States Mail Chute Equipment Company, and the manager of its New York office. The alleged libelous words are contained in a letter written by the defendant to the equipment company. In that letter the defendant refers to the plaintiff as "the venomous incompetent creature who has charge of your office here and who either does not know how to put it in order [meaning a certain mail chute] or wilfully queers it so that it will not serve the purpose for which it is wanted," and further saying in substance that the equipment company was giving "your New York Manager another chance to bedevil us and the job." It is urged by the defendant that the words are not libelous per se; that there is no sufficient allegation of any trade, profession or occupation, and that, in the absence of an allegation of any specific damage, the plaintiff is not entitled to recover, and, therefore, the defendant was entitled to a dismissal of the complaint. If we analyze the words used we are of the opinion that they touch the plaintiff in his private character, in that they charge him with being "venomous," with an intention to "wilfully queer" his work, and "bedevil" the job. To characterize a Second Department, February, 1912. [Vol. 149. person as possessing those qualities charges such moral delinquency as necessarily affects him in his personal character, and in our opinion is libelous per se. To charge him with being "incompetent" tends to injure him in relation to his business and occupation. In the case under consideration the letter in question tends to injure the plaintiff in his private character as well as his standing in his business and occupation. It goes without saying that willful words which hold a person up to hatred, ridicule, contempt or obliquy, are libelous per se. The words of the letter do nothing less. So, too, words written of a man in relation to his business or occupation which have a tendency to hurt, or are calculated to prejudice him therein, are actionable, although they charge no fraud or dishonesty, and were without actual malice, and, when proved, unless the defendant shows a lawful excuse, the plaintiff is entitled to recover. (Moore v. Francis, 121 N. Y. 199; Krug v. Pitass, 162 id. 154, 159; Bornmann v. Star Co., 174 id. 212, 219; Triggs v. Sun Printing & Pub. Assn., 179 id. 144, 153; Le Massena v. Storm, 62 App. Div. 150, 153; Gibson v. Sun Printing & Pub. Assn., 71 id. 566, 569; Cruikshank v. Gordon, 118 N. Y. 178, 183.) We think these authorities dispose of the defendant's contention, and the court was correct in denying the defendant's motion for judgment. In our judgment it would be absurd to hold, as contended by appellant, that because the plaintiff did not practice a profession or follow a trade, he was not equally protected from unjust attack. He was apparently the local manager of a large and important business enterprise. His good name and reputation as the business manager of such a concern is just as sacred as though he were prominent in one of the learned professions. The law should be just as zealous to protect the reputation of a business man as one of capacity and ability, as one engaged in following a trade or practicing a profession. The appellant further contends that the letter containing the words complained of is a privileged communication. Assuming such to be the fact, such privilege rests with the defendant to establish as a defense, and it is not for the plaintiff in the first instance to show that the article is not of the privileged class. Communications otherwise privileged cease to be privileged App. Div.] Second Department, February, 1912. when actuated by malice and made in bad faith. The letter in question is so intemperate in language that a jury might well infer the writer was actuated by feelings of personal malice toward the plaintiff. The order appealed from should be affirmed, with ten dollars costs and disbursements. JENKS, P. J., HIRSCHBERG, BURR and RICH, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. VICTOR KOECHL, Appellant, v. GATE DEVELOPMENT COMPANY and Others, Defendants. J. ALFRED BERGER, JR., as Executor, etc., of ROBERT J. FREEMAN, Deceased, Respondent. Second Department, February 23, 1912. Foreclosure-sale-power of court to relieve purchaser from bid. The court in its discretion may relieve a person who has bid in lands on a foreclosure sale from his purchase where it subsequently appears that a person not made a party to the suit claims to be the owner of the equity of redemption and has moved for an order to show cause why the sale should not be vacated and set aside. This is true although the affidavits do not show a positive defect in title, as the purchaser should not be burdened with a threatened law suit. APPEAL by the plaintiff, Victor Koechl, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 6th day of October, 1911, granting the respondent's motion to be relieved of his purchase on a foreclosure sale. Edwin Kempton and Charles Bradshaw, for the appellant. William S. Woodhull [Beno B. Gattell with him on the brief], for the respondent. WOODWARD, J.: Emily F. and Hannibal French executed a mortgage to the Title Guarantee and Trust Company for $4,000 on the 3d day of November, 1899, which became due in three years from its Second Department, February, 1912. [Vol. 149. date. The Title Guarantee and Trust Company assigned the bond and mortgage to the plaintiff in this action on or about November 16, 1899. Payment of the principal was subsequently extended to November 3, 1911, by an agreement made in 1908 by the Title Guarantee and Trust Company for the mortgagee, and one Annie Cohen, the then owner of the premises. Interest being unpaid, the plaintiff filed a lis pendens on December 3, 1910, and commenced a foreclosure action, which resulted in a judgment of foreclosure and sale on April 7, 1911. The premises were duly sold, J. Alfred Berger, Jr., as executor of Robert J. Freeman, becoming the purchaser for the purpose of protecting the estate, which was the owner of a second mortgage upon the premises for the sum of $2,000. The executor paid $523, ten per cent of the purchase price, together with $17 for auctioneer's fees and other expenses. Intending to complete the purchase, Mr. Berger was informed by his attorney that he had been served with an order to show cause why the foreclosure sale should not be vacated and set aside and a resale ordered. This motion was made by an attorney representing the Greenwich Investing Company, claiming to be the owner of the equity of redemption in the premises purchased by Mr. Berger at the foreclosure sale. This motion resulted in an order denying the motion. Being thus advised of a claim on the part of the Greenwich Investing Company, which was not a party to the foreclosure action, Mr. Berger moved the County Court of Kings county to be relieved of his purchase, and from the order granting this motion the plaintiff appeals to this court. While it is true that the affidavits submitted upon the motion do not conclusively show that there is any defect in the title, it is plain to be seen that there is an opportunity for a lawsuit, which appears to be threatened. There is no doubt that there was a conveyance of the premises by the Gate Development Company, one of the defendants in the foreclosure action, to the Greenwich Investing Company on the 30th day of September, 1910; that the deed was duly acknowledged on the 1st day of October, 1910, and recorded in the office of the register of the county of Kings on the 15th day of March, 1911, and it is claimed that the premises were in the App. Div.1 Second Department, February, 1912. actual possession of the Greenwich Investing Company, through its agent, one Cohen, and it is claimed that the plaintiff had notice of such claim of title and possession on the part of the Greenwich Company at the time of commencing the action. It is true that the facts do not appear positively, but there is clearly enough of the claim of the Greenwich Company to make it fairly certain that the title to the premises will be brought into question in some kind of an action, and it would be a hardship to the purchaser, who was compelled to purchase to protect the lien on the second mortgage, to compel him to stand the expense and annoyance of a lawsuit. We think the matter rests in the discretion of the court, and that, no abuse of the discretion being shown, it is the duty of this court to affirm the order, which does no more than to place the respondent in practically the same position that he occupied before the sale. The order appealed from should be affirmed, with ten dollars costs and disbursements. JENKS, P. J., HIRSCHBERG and RICH, JJ., concurred; BURR, J., not voting. Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements. VITTORIO SARTORI, as Administrator, etc., of EDWARDO ALBINO SARTORI, Deceased, Appellant, v. LITCHFIELD CONSTRUCTION COMPANY and RICHMOND LIGHT AND RAILROAD COMPANY, Respondents. Second Department, February 23, 1912. Pleading - demurrer action to recover for death by wrongful act · misjoinder of parties - complaint stating single cause of action. A demurrer to a complaint against two defendants to recover for the death of the plaintiff's intestate, on the ground that causes of action have been improperly united, is not well taken even though the plaintiff has attempted to state separate causes of action against the respective defendants, if in fact but a single cause of action is pleaded against them as joint tort feasors. APP. DIV.-VOL. CXLIX. 16 |