New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1895-05-18
THE COURTS.
PHILIP ]. DIVER DEFEATED.
THE GENERAL TERM sUsrAINS THE L""H"
COURTS DECISION IN THE GIDEON

PHILIP J. DWYER DEFEATED.
THE GENERAL TERM susrAINs THE LOWER
COURTS DECISION IN THE GIDEON
ISLANDER SUIT.
The General Term Of the supreme Court 'us'eeS
Van B:unt OBrien and Foliett. In an opinion
written by Justice OBrien, yesterday arterhoo"
gave n decision sustaining the complaint IN the
action brought by David Gideon against fhihp >.
Dwver N recover $50 900 damages for SANDER This
onnion afprms the Judgment Of Justice Barrett.
who oyerruled the demurrer which had peen inter-
posed ny Dwyer upon the ground that the co'"p'a"'
did not state facts sufficient 10 constitute cause
Of action holding that there was a cause OF
action for the words complained or The cause
NJ action arose from words that were spoken on
June 90 1884, at the racecourse at Sheepshead Bay
during a dispute between the two men concerning Inc
merits of the horse Banquet owned by Michaei +.
DIVER and Ramapo. owned by Gideon n DAILY The
horses had run a dead heat that day and 1t was as
serted that Ramapo had peeh lou'eu anu s""'N u"'
Ing the race.
They were engaged In a heated discussion as 10
The merits OF the horses. when Dwyer declared 10
Gideon: "You are no sportsman. You had TO leave
Nashville account of n turf fraud you committed
there President Clark. Of the Louisville Jockey
Club wanted to rule you off tor your crooked prac-
tees there and warned you off the turf there ana
sou had to leave town
Dwyer demurred to the complaint upon the ground
that the complaint did not state facts SUFFICIENT 10
Themselves were not sctIohable. and therefore,
Gideon could not recover without proof OF speci"'
damage, which was not alleged The question was
taken up on appea,. The Appellate Court says
that the question before the Court Is whether the
words complained of actionable per &c.
Justice OIlricn wrote the opinion a'ilrn'ng 'he
action Of Justice Barrett overriding the demurrer
md II liz conctsrred IN by Presiding Justic" van
Brunt. Justice Follet, wrote n dissenting OPINION
hoidlug that the judgment should be reversed wy
dsmsaing complaint, The majority OF INC .o ,m
hold that u good cause Of action II s,h,ca IN We
complaint. ana the judgmcn, ovcrruUhn ING .a uo
mufrer should bc Aligned, with COSTS, WIN icn'u
TO Dwyor to answer the complaint withm '"'"S
days on payment OF cohia ~ o,,.,. a.. a..
several caAca are cited by Juacc Olricn 20 'h"
effect that unless defendant shows mwIW ",
cuisc the plaintiff II entitled 10 recover without
allegation or proof OF special damage because potn
The falslty Of the words and resulting dan'hs" "'"
presumed ana then continues -.
1.-THE defendant does not contend nghihrt Wsro
elementary principles Of the law OF hlhnucl, uu.
claims that The words themselves clearly snow tnht
they we're spoken OF the plaintiff. not az pus'hers
man. but az a sportsman or patron or the tufi anu
therefore are not In themselves actonhblc w
cannot, however, agree with the Defendant IN ths
contention The defamatory words were not con-
fined 10 the plaintiffs character as sportsman;
They also charged him with the comm'ss'o" VI
turf frauds"