#### SLAYTON v. HEMKEN.

(Supreme Court, General Term, First Department.

December 18, 1895.)

1. Release—Constbuction.

A general release between persons having not only partnership relations, but causes o£ action against each other for tort, is not limited by the concluding words, “And particularly from all claims and demands whatsoever arising out of the partnership relation between the parties.”

3. Same—Effect.

A general release between persons will, so long as not set aside, bar action by one against the other for a cause existing at the time of the release, though not known by plaintiff.

*2503. Libel—Words Actionable per se.

Where a complaint for libel sets out matters of inducement, showing the existence of circumstances which, when considered in connection with the words complained of, make them defamatory, and also sets out innuendos making the application of the defamatory words to plaintiff, it is not necessary to show special damages.

4. Slander—Actionable Words.

To say to one of a third person, “He swindled and robbed me,” is actionable per se; and to relieve the words of this quality it must be shown that they were intended'to be understood in a limited sense, and that the person to whom they were spoken knew this.

Appeal from circuit court, New York county.

Action by Emil Slayton against Hans Hemken to recover damages for libel and slander. A judgment was entered on a verdict in favor of defendant, and plaintiff apppeals.

Reversed.

Argued before VAN BRUNT, P. J., and PARKER and PATTERSON, JJ.

E. Ellery Anderson, for appellant.

B. F. Einstein, for respondent.

PATTERSON, J.

The complaint herein was upon three cause® of action in libel and a fourth in slander. The first and third were dismissed by the court, and a verdict was rendered for the defendant on the second and fourth. We do not agree with the views of the trial justice as to the effect of the evidence of the plaintiff's witness relating to the subject of the specific ruling by which this first cause of action was disposed of. The identification of the defendant as the person who on the evening of the 27th of October, 1890, gave the reporter of the newspaper the defamatory statements that appeared in the article next day was sufficient prima facie; but we are of opinion that the course taken at the trial with respect to this cause of action was right for another and different reason; one which not only applies directly to it, but brings up the question of the correctness of the charge to the jury in submitting the matters arising in the second cause of action. The wrong there complained of is alleged to have been committed on or about the 10th of November, 1890. There was a question of fact properly left to the jury, whether copies of the newspaper containing the libelous matter were mailed by the procurement of the defendant to divers persons before or after November 5, 1890. For some months before that date the plaintiff and defendant had been copartners in business. Exceedingly hostile relations had sprung up between them. On the day last named releases under seal were exchanged. The court charged that the release was a bar to all right of action for anything involved in this action that occurred prior to November 5th. It was shown that on that day the parties came to an. accord and settlement of all the matters in controversy between them,—an adjustment of matters not only growing out of strictly business, differences, but, as the record discloses, involving serious torts.. The instrument was in form a general release, with its customary sweeping technical verbiage, followed by the words: “And par*251ticularly from all claims and demands whatsoever arising out of the partnership relations between said parties as members of the-firm of Hemken & Slayton.” Regard being had to all the relations existing between these parties, we cannot say the instruction given to the jury was error. Something more than mere “partnership relations” or business demands and causes of action were in dispute. Bitter wrongs were alleged on both sides. Fraud and crime had been imputed to the plaintiff, who in turn accused the defendant of having caused his arrest, and maligned him. Personal torts were, therefore, under consideration, and what was in negotiation before the release, and became affected by it, was a general settlement of all the outstanding differences, and an abandonment of the respective grievances, whatever they might be, of the parties. Had the release been so drawn as to indicate a purpose to reserve anything from its operation, it would certainly be strictly limited in interpreting it. The only ground upon which such a limitation is sought to be impressed upon it by the appellant is by force of the words above quoted. The rule respecting the construction of releases is that, although taken most strongly against the releasor, yet general words are to be construed by their context, and, if there appear a clear intent to make a limitation or exception, it shall be allowed. Therefore recitals are said to control the general clause, and make it special, and so the particular subject of the dealing out of which the release arises may, if distinctly stated in the instrument before the general clause,, confine the effect of that general clause to matters directly connected with that particular subject. But it is all a matter of intention. If the instrument is in a form to operate as a general release, ignorance of a claim or cause of action does not impair its effect at law as a bar to that claim or cause of action. Kirchner v. Machine Co., 135 N. Y. 182, 31 N. E. 1104. But, while all parts of the instrument are to be considered in determining its intent, the general principle of construction has been that the words of limitation should precede^ and not follow, the general words. Thus in Jackson v. Stackhouse, 1 Cow. 125, the court says: “Where there is a particular recital, and general words follow, the general words shall be qualified by the particular recital.” It is not to be inferred from this that it is an inflexible requirement that the mere order of arrangement of the component parts of the release must necessarily control, but that order is of great significance, as is illustrated by Dunbar v. Dunbar, 5 Gray, 104. There words of general release were followed by the words, “and particularly from the debt and costs in two actions,” etc. Shaw, C. J., for the court, says: “Certainly great liberality is allowed in construing releases. The intent is to be sought from the whole and every part of the instrument.” So “where certain debts, claims, and subjects of controversy are released, followed by general words,, they shall be construed to be limited to the subjects enumerated,, or those of a like kind and character, if such be the fair intent. Simons v. Johnson, 3 Barn. & Adol. 175.” The Dunbar Case seemed to turn largely upon the fact that the releasor did not first *252¡specify the particular things, and then add the general clause, ■but vice versa. Here is the same description of release, using the same words, “particularly from.” Obviously it comprehended ¡something more than mere business or commercial controversies. Actionable personal wrongs were, and were intended to be, included; and, under the Kirchner Case, ignorance of the existence of any particular wrong does not destroy the legal effect of the release, although it might have been attacked for mutual mistake, or mistake of one party and fraud of the other; an opportunity to do which was given by the justice at the trial, but was not availed of. Under this construction the charge was not erroneous, and the dismissal of the first cause of action was proper, for the alleged wrong therein set forth was perpetrated on the 37th October, and was, therefore, fully released.

The third cause of action was taken from the jury on the ground that the words complained of were not in themselves libelous, and special damage was neither alleged nor proven. But matter of inducement, clear and direct, showing the existence of circumstances extrinsic of the words, but which, when considered in connection with them, made such words defamatory, was plainly set forth in the statement of that particular cause of action; and innuendoes appropriately making the application of the defamatory words to the plaintiff were also set forth. With such allegations it was not necessary to show special damage, for an action may be maintained without it, as was held in the recent case in this court of Gideon v. Dwyer, 87 Hun, 250, 33 N. Y. Supp. 754. The disposition made of this cause of action at the circuit was, therefore, erroneous. The words complained of in the fourth cause of action are, “he [meaning the plaintiff] swindled and robbed me [meaning the defendant].” The court left to the jury tó determine the actionable character of these words, and whether it was the intention to use them as imputing crime, or in a sense that would injure the plaintiff in his business; and, giving the words their ordinary significance, whether a person cognizant of the relations existing between the parties and hearing the words would' understand that a charge was made that the plaintiff had committed a crime. As this instruction was given, it was error. The words were spoken to one Donnenberg, in the hearing of the witness Ahlborn. They are plainly slanderous per se. To relieve them of that quality, they must have been explained, or in some way limited to particular facts, or shown to have been spoken to some one having knowledge or information of such facts. Hayes v. Ball, 72 N. Y. 418; Phillips v. Barber, 7 Wend. 439. Ahlborn says the defendant explained to Donnenberg “what the trouble was between him and Mr. Slayton,” but does not recollect the explanation. Hot one and other than those complained of can the witness recall. The case is therefore lacking in any kind of proof of explanatory matter, and the naked defamatory words spoken to Donnenberg were alone before the court. The words ‘“swindled” and “robber” each have a well-known, and but one, signification. A robber is a thief, and to say of a man, “You are a *253thief,” imputes larceny (Slowman v. Dutton, 10 Bing. 402); and to say, “He robbed J. W.,” imputes crime also (Tomlinson v. Brittlebank, 4 Barn. & Adol. 630). So here there is a direct charge that the plaintiff robbed the defendant. It stands alone, unexplained, without evidence of circumstances showing anything from which an inference could be drawn that the words used were to be understood in any mitigated sense, or that the person to whom they were spoken had any reason, from knowledge or information possessed by him, to understand them in any other than their ordinary meaning.

For the errors referred to relating to the third and fourth causes of action the judgment and order appealed from must be reversed, and a new trial ordered as to such causes of action, with costs to the appellant to abide the event. All concur.