(76 Hun, 314.)

#### STOKES v. STOKES.

(Supreme Court, General Term, First Department.

February 16, 1894.)

1. Appeal—Order Directing Interlocutory Judgment.

An order directing the entry of an interlocutory judgment is not appealable.

2. Libel—Words Actionable per Se.

A publication which tends to diminish the respectability of a person, and expose him to disgrace, ridicule, and obloquy, is actionable without alleging special damages, though it does not charge him with the commission of a crime.

Appeal from special term, New York county.

Action by Edward S. Stokes against W. E. D. Stokes for libel. From an interlocutory judgment overruling a demurrer to part of the complaint, and from an order directing the entry of said Interlocutory judgment, defendant appeals. Affirmed.

For former report see 25 N. Y. Supp. 405.

The first count of the complaint to which the demurrer was taken is as follows:

(1) That at all the times hereinafter mentioned plaintiff was, and still is, the president and manager of the business of the corporation known as the “Hoffman House,” carrying on in the city of New York the business of an hotel and restaurant, and was at said times, and still is, a large stockholder and owner of bonds in said corporation, and was, during the same time, en*166gaged in other business enterprises. (2) That during all of said times plaintiff was of good lame and credit, and has never been guilty of any fraud, deceit, swindling, misappropriation of moneys or property of others, or of any offense charged against him in the libels hereinafter set forth. (3) That the business of this plaintiff is in the capacity of president of the said Hoffman House, and the manager of the business thereof as aforesaid, and generally as an hotel proprietor; and this business, as well as other enterprises and engagements, has always depended largely on the good reputation and credit of this plaintiff, and on the personal trust reposed in him by the public in consequence thereof. (4) That the said defendant, knowing the premises, about the 4th or 5th day of November, 1892, maliciously composed, and maliciously caused to be published, concerning the plaintiff, in a newspaper called the “New York Herald,” and published on said 5th day of November, 1892, in the city of New York, the false and defamatory matter following, and which publication in the said newspaper was read by a large number of persons in the city of New York: “To the Editor of the Herald: In the letter of E. S. Stokes (meaning the plaintiff) which appeared this morning, he (meaning the plaintiff) proposes an arbitration of our (meaning the plaintiff’s and defendant’s) controversy, and offers what is equivalent to- a bet of $10,000 on the result. The meaning of this—escape from the argument coming on in court to-day, and to stave off the judgment I will be entitled to enter against him for about $38,000 next week—was revealed by the remark of his counsel, in open court, that he (meaning the plaintiff) was short of money, and could not pay back what he (meaning the plaintiff) had borrowed from me (meaning the defendant), only if I first gave up, not a part, but the whole, of the collateral, he (meaning the plaintiff) had pledged for this and his other guaranties and obligations to me (meaning the defendant). In all his career, this is the biggest and silliest ‘bluff’ he ever attempted, although he is a prince in that line. What has become of the profits of the Hoffman House for the last two years—more than $100,000 a year—no one knows; but by this confession (meaning that the said Hoffman House had earned as profits $100,000 for two years, and that the said plaintiff had confessedly appropriated the same to his own use, in fraud of the rights of the defendant and others as stockholders in said Hoffman House) public charities and private ones may explain it. When his money is gone, he must gain time (meaning that the said plaintiff had squandered the corporation’s money in a disreputable way, and that his object in proposing an arbitration of the matters in dispute between him and the defendant was to gain time to raise money and means to replace his¡ misappropriations). As to his notion of an arbitration, he may as well throw aside this worn-out side play, together with some of his' worn-out sins. After choosing the arbitrament of the court, he now shrinks from it. He prefers _ a private arbitration because then he is not sworn nor held to the rules of evidence (meaning that the plaintiff’s motive in proposing an arbitration of the disputes aforesaid was that, his testimony being without the sanction of an oath, he could testify falsely, and without risk of the consequence of perjury). He has admitted openly that he has no defense to my claim for the repayment of the money he borrowed, and as a last desperate resort found this the most plausible plea for delay; but there is nothing to arbitrate. I am reminded of the sentence from De Quincy: ‘If once a man indulges in murder, very soon he becomes to -think little of robbing; from robbing he comes next to drinking, and from that to ill manners and procrastination. Once enter the downward path, and you know not where you will stop.’ ” (Meaning that the plaintiff had, been guilty of the crime of murder, and was also a robber, and at the time of the publication of said false and defamatory matter had robbed defendant, and that he, the said plaintiff, was otherwise degraded and depraved.)

The following in the opinion of Mr. Justice LAWRENCE on overruling the demurrer:

A demurrer is taken in this action by the defendant as to the first cause of action stated in the complaint, contained and included within the first four paragraphs thereof, on the ground that upon the face thereof it does not state facts sufficient to constitute a cause of action. It is perfectly well *167settled that words which tend to diminish the respectability of the person to whom they relate, and *to*expose him to disgrace and obloquy, although they do not impute the commission of a crime, and would not be actionable per se if only spoken, are, when printed and published, libelous and actionable, although no special damages are alleged or proved. • Winchell v. Argus Co., 69 Hun, 354, 23 N. Y. S. 650; Samuels v. Evening Mail Ass’n (dissenting opinion of Davis, P. J.) 9 Hun, 294, affirmed and approved of in 75 N. Y. 604; Henderson v. Commercial Advertiser Ass’n, 46 Hun, 504; Sanderson v. Caldwell, 45 N. Y. 398; Bergmann v. Jones, 94 N. Y. 51; Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127. The letter which is set forth as the first cause of action in the complaint in this case is certainly calculated to hold the plaintiff up to ridicule and obloquy, and also, by fair construction, in my opinion charges him with the commission of a crime. Under such circumstances it is difficult to see how a demurrer can be sustained. The demurrer will therefore be overruled, with leave to the defendant to answer over upon payment of costs.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

A H. Holmes, for appellant.

M. H. Regensburger, for respondent.

VAN BRUNT, P. J.

So far as the appellant has appealed from the order or decision of the court directing the entry of an interlocutory judgment, the appeal must be dismissed, with $10 costs. It has been held by the court of appeals that such an order is not appealable, which rule has been followed by this court. It is true that different decisions have been made by the superior court of this city, but it is manifest from the decision of the court of appeals in Bank v. Lynch, 76 N. V. 514, that the only appeal is from the judgment. Wright v. Chapin, (Sup.) 26 N. Y. Supp. 825.

The appellant claims that no sufficient cause of action is set out in the complaint, upon the ground that the alleged libelous matters must be read without the innuendoes; and that, without resort to such innuendoes, no cause of action is set out. In this we are of opinion that he is clearly mistaken. The rule is well settled that defamatory words, in common parlance, are such as impute some moral delinquency or some disreputable conduct to the person of whom they are spoken; and that even actions for slander may be founded upon such imputations; and that such action lies in some cases where the words impute no criminal offense, where no attack is made upon the moral character, nor any charge of personal dishonor. It has been said that the first and larger class of actions are those brought for the vindication of reputation in its strict sense, against damaging and calumnious aspersions; and that the other class for the most part are those brought for the purpose of recovering damages for words which tend to injure one in his trade or occupation. Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127. And it has been further held that whatever words have a tendency to hurt, or are calculated to prejudice, a man who seeks his livelihood by any trade or business, are actionable. And the rule seems to be well stated by the learned judge in the court below that publications which tend to *168diminish the respectability of the person to whom they relate, and to expose him to disgrace and obloquy, although they do not impute the commission of a crime, are libelous, and actionable, although no special damages are alleged or proved. In the case at bar the words of the publication in question clearly tend to affect the credit and standing of the plaintiff, and impute not only disreputable conduct, but moral delinquency, to him. We think, therefore, that a cause of action is set out in the complaint, and that the judgment appealed from should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and to answer over on payment of costs of appeal and of the court below. All concur.