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I think that such an officer has both an interest and a duty to see to it that no house within his precinct should be kept or maintained as a disorderly house, and that there is a corresponding duty cast upon the landlord. It is not necessary to rest this conclusion upon general consideration of the public morals alone, inasmuch as section 322 of the Penal Code prescribes that the keeping of a disorderly house is a misdemeanor, and to let knowingly a house for such purposes, or to suffer it to be thus used, is likewise a misdemeanor. The view of the learned court was that the duty of the defendant was confined to procure the arrest of the offenders and to bring them into a court of justice, and that therefore he had no duty to perform in the direction of giving information to the landlord. But the duty to arrest for a crime is not necessarily exclusive of a duty to inform of a crime. And one whose primary or principal duty is to apprehend should not be precluded for that reason from the plea of prima facie privilege as to his statements. If this tenement, or any part thereof, was used for immoral purposes, the lease to the disorderly persons was terminable at the pleasure of the lessor, who could thereupon institute summary proceedings against them. Title 3, subc. 5, c. 334, p. 920, of the Laws

of 1901.

I think that the occasion is prima facie privileged when a captain of police informs a landlord that his tenement is a disorderly house; nay, I think that the defendant, in his status as a citizen, might make such plea. In Liddle v. Hodges, 2 Bosw. (N. Y.) 537, it was held, per Woodruff, J., for the court, that a landlord had such an interest in knowing the character and reputation of his tenant that communications to him upon the character of his tenants were privileged. It is true that in that case there was inquiry by the landlord, but the rule as laid down is expressed by the learned judge as follows:

"When a duty to the public, or to the party seeking information, requires that one should freely impart what information he has, or express the opinion his observation or experience has enabled him to form, he is to be protected, unless it is shown that he acted in bad faith, and under the influence of malice."

The learned court seemed to draw a distinction between information sought and information volunteered. But the fact that the information is volunteered does not necessarily prevent the application of the principle of qualified privilege. Lewis v. Chapman, 16 N. Y. 369; Stuart v. Bell, 2 L. R. Q. B. Div. 341. Whether the occasion was privileged was a question for the court. Sickles v. Kling, 60 App. Div. 515, 69 N. Y. Supp. 944, and authorities cited; Byam v. Collins, supra.

The learned court, under exception, ruled that the occasion was not one of privilege, and I think that this was error prejudicial to the defendant; for, when the occasion is one of prima facie privilege, the presumption of malice does not arise from the mere utterance of the slanderous words. It is incumbent upon the plaintiff to show that the defendant was under motives other than those of duty. And mere evidence that the words were false does not raise the presumption of malice. Ormsby v. Douglass, 37 N. Y. 477; Hemmens v. Nelson, 138 N. Y. 517, 34 N. E. 342, 20 L. R. A. 440. When the learned court decided that there was no question of privilege in the case, it pro

and 146 New York State Reporter

ceeded to the logical consequence of an instruction to the jury that if the defendant told the landlord that the plaintiff and her family were improper women, and if that were untrue, then the plaintiff was entitled to a verdict. Of course, the question of such privilege bears upon. the occasion of the speech, and not to the surrounding circumstances, or to the nature of the communication; that is, the mere privilege of the occasion does not protect one who may have made the communication on the occasion knowingly or carelessly, in the hearing of those who are not concerned, or who may use stronger language than was necessary or was justified. Odger, Libel and Slander, citing Roberts v. Richards, 3 F. & F. 507; Padmore v. Lawrence, 11 A. & E. 380; Newell on Slander and Libel, pp. 477, 532. In the words of Woodruff, J., in Liddle v. Hodges, supra:

"And the communication itself may be of such a character, and bear on its face such evidence of the malice of the defendant, that it may, and ought to be, submitted to the jury."

As I have said, the defendant testified that, when he discussed the matter with the landlord, he then had the house under investigation in consequence of complaints, and he was seeking her permission for access to the premises in order to continue his investigation. In People v. Glennon, 175 N. Y. 45, 67 N. E. 125, the court, per Cullen, J.,

say:

"If having a well-grounded belief that the house was a house of prostitution, even though he had not witnesses sufficient to justify him in making his arrest, it was his duty, if he could obtain admission to the house peaceably and without violation of law, to enter it to see what its nature and character was. So, also, the conduct of the inmates, so far as could be observed in the street, though insufficient to justify the arrest, might well have required the application to a magistrate for a warrant; and it was his duty to diligently seek for evidence to present to the magistrate on such application."

If the communication as to the character of the premises of the plaintiffs, or even as to their character, was incidental to the investigation of an alleged crime, then, as was said in Klinck v. Colby, 46 N. Y. 434, 7 Am. Rep. 360:

"For the sake of public justice, charges and communications, which would otherwise be slanderous, are protected, if made bona fide in the prosecution of an inquiry into a suspected crime. Padmore v. Lawrence, 11 Ad. & Ellis, 380."

The learned court was requested to give this instruction to the jury, but answered, under exception, that, while this principle was true, it had no relation to this case. It seems to me that this bore upon the case, inasmuch as the version of the defendant was that all communications which he had with the landlord (out of which this charge of slander arose) were in the investigation of the character of the house and its inmates.

The judgment must be reversed, and a new trial granted, costs to abide the event. All concur.

MORTON v. KNIPE.

(Supreme Court, Appellate Division, Second Department. October 9, 1908.)

Appeal from Trial Term, Kings County.

Action by Catherine Morton, by Catherine Morton, her guardian ad litem, against William Knipe. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed, and new trial granted. Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and MILLER, JJ.

PER CURIAM.

Judgment and order reversed, and new trial granted, costs to abide the event, on the authority of Catherine Morton v. Knipe (decided herewith) 112 N. Y. Supp. 451.

MORTON v. KNIPE.

(Supreme Court, Appellate Division, Second Department. October 9. 1908.)

Appeal from Trial Term, Kings County.

Action by Byde Morton, by Catherine Morton, her guardian ad litem, against William Knipe. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. and new trial granted.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and MILLER, JJ.

PER CURIAM. Judgment and order reversed, and new trial granted, costs to abide the event, on the authority of Catherine Morton v. Knipe (decided herewith) 112 N. Y. Supp. 451.

(128 App. Div. 79.)

BAXTER v. YORK REALTY CO.

(Supreme Court, Appellate Division, Second Department. October 9, 1908.)

1. STATUTES-CONSTRUCTION-CONSTRUING ENTIRE STATUTE.

All the words of a statute should be given a meaning, if possible. [Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 282288.]

2. WORDS AND PHRASES DIFFERENTIATED.

"CONTIGUOUS," "ADJACENT," AND "ADJOINING"

Crabb's English Synonyms classifies together "adjacent," "adjoining," and "contiguous," and in defining them states that what is adjacent may be separated by some intervening object, what is adjoining must touch in some part, while that which is contiguous must touch entirely on one side.

[Ed. Note. For other definitions, see Words and Phrases, vol. 1, pp. 184-190; vol. 8, pp. 7565, 7566; vol. 2, pp. 1495, 1496.]

3. ADJOINING LANDOWNERS EXCAVATIONS-CONTIGUOUS STRUCTURES-"CONTIGUOUS."

The word "contiguous," in an ordinance providing that where an excavation goes below 10 feet, if the other party permits entrance, the excavator must preserve any adjoining or contiguous structure, contemplates nearness of a structure, but with intervening space, and any wall or structure is contiguous which is near enough to be disturbed by the excavation.

Appeal from Trial Term, Kings County.

Action by Lemuel W. Baxter against the York Realty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

and 146 New York State Reporter

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and MILLER, JJ.

Edward V. Farley, for appellant.
Rufus L. Scott, for respondent.

WOODWARD, J. This action is brought to recover damages to the plaintiff's building, alleged to be due to the act of the defendant in excavating to a depth of more than 10 feet without protecting the plaintiff's walls, in violation of section 22 of the Building Code. The question seriously debated is the application of the ordinance under the circumstances; it being conceded that the defendant's excavation was 5 feet from the plaintiff's wall.

The ordinance provides that where the excavation goes below 10 feet, if the other party permits entrance, it shall be the duty of the party excavating to "preserve any adjoining or contiguous wall or walls, structure or structures, from injury," etc. The defendant urges that its excavation was not contiguous, within the meaning of the ordinance or regulation, because 5 feet away. The learned referee has entered into a careful consideration of the word and its use, as well as into the history of the provision in the Code, and reaches the conclusion that the excavation was contiguous, a conclusion which seems well within reason and authority.

All the words of a statute are to be given some meaning, if possible, and if it were intended to require that the walls should be adjoining there was no occasion for using the word "contiguous" disjunctively, and if contiguous has a larger meaning, and the situation is within the mischief to be remedied, it is clearly within the statute. Mr. Crabb, in his English Synonyms, classifies together "adjacent," "adjoining,' and "contiguous," and, after giving the etymology of these words, illustrates the difference between them in the following manner:

"What is adjacent may be separated by the intervention of some third object: "They have been beating up for volunteers at York, and the towns adjacent, but nobody will list.'-Grenville. What is adjoining must touch in some part: 'As he happens to have no estate adjoining, equal to his own, his oppressions are often borne without resistance.'-Johnson. What is contiguous must be fitted to touch entirely on one side: 'We arrived at the utmost boundaries of a wood, which lay contiguous to a plain.'-Steele. Lands are adjacent to a house or town; fields are adjoined to each other; houses contiguous to each other."

That is, the word contemplates nearness, but with intervening spaces, as between houses; and when we are contemplating a local city provision, designed to apply to city lots, with contiguous buildings, it seems entirely proper that we should hold that any wall is contiguous which is near enough to be disturbed by the excavation.

The judgment should be affirmed.

Judgment affirmed, with costs. All concur.

SPECHT v. HELFER et al.

(Supreme Court, Trial Term, Niagara County. September, 1908.)

1. TRIAL-CALENDARS-PREFERRED CAUSES.

An action to determine the validity of the probate of a will, in which the executor individually and in a representative capacity is a party defendant, is entitled to a preference on the calendar, under express terms of Code Civ. Proc. § 791, subd. 5.

2. SAME.

The preference given by Code Civ. Proc. § 791, subd. 5, in an action to determine the validity of the probate of a will, in which the executor individually and in a representative capacity is a party defendant, may be claimed by either party.

Action by Maude R. Specht against Margaret M. Helfer and others. On motion to correct calendar. Granted.

D. E. Brong, for the motion.
E. M. Ashley, opposed.

POUND, J. This is a motion to correct the calendar by placing the cause on the preferred calendar. The action is one to determine the validity of the probate of a will. The executor is a party defendant, both individually and in his representative capacity. The preference is claimed under section 791, subd. 5, of the Code of Civil Procedure, and opposed on the ground that such right to a preference is defeated by the fact that the executor is a party defendant individually. In Haux v. Dry Dock Savings Institution, 150 N. Y. 581, 44 N. É. 1099, the memorandum of the court says:

"A party is only entitled to a preference upon the calendar, under subdivision 5 of section 791 of the Code of Civil Procedure, where, in one of the capacities mentioned therein, he is the sole plaintiff or the sole defendant. Here other persons are joined as plaintiffs with the executor and executrix, and while these persons may be the executor and executrix, suing in their individual capacities, that fact will not serve to bring the case within the preference as accorded by the Code."

So it is claimed that the preference does not exist here. But it seems obvious that the court had in mind only so much of the subdivision as was material to the question under consideration in the case before it. That was not an action to determine the validity of the probate of a will. The only question involved was whether a person, suing individually and as executor, was the sole plaintiff within the meaning of that portion of the subdivision which gives a preference to "an action in which an executor * * is the sole plaintiff." The decision has no bearing here. The subdivision further provides for a preference in "an action to determine the validity of the probate of a will in which the * * * executor of the will is joined as plaintiff or defendant with other parties." Either party is entitled to claim said preference. Schwartz v. Wolfrath, 24 Misc. Rep. 406, 53 N. Y. Supp. 263.

*

The cause is entitled to its place on the preferred calendar and the day calendar in its proper order.

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