Alexander Potter, Respondent, v. The Pictorial Review Company, Appellant

Alexander Potter, Respondent, v. The Pictorial Review Company, Appellant. First Department, May 29, 1913. Libel — article charging civil engineer with drawing defective plans •=— . demurrer. Where a civil engineer employed by a city to make plans for a water-supply had no discretion, but drew the plans according to the express directions of his employer, it is not libelous per se to publish an article stating in substance that the plans did not provide for' a filtration plant and that that fact was improperly concealed from the citizens. Where a complaint in an action to recover for such alleged libel does' not allege special damage, a demurrer thereto should be sustained. Appeal by the defendant, the Pictorial Review Company, from an order of the Supreme- Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1913, overruling the defendant’s demurrer to the complaint on the ground that it states no cause of action; , Action for libel.. The article complained of is alleged to have charged the plaintiff, a civil engineer, with having made, at-the instance of politicians, plans for a water supply for a city, without an adequate purification system, and of improperly concealing the inferiority of the proposed system, etc. Hugo H. Ritterbusch, for the appellant. J. Aspinwall Hodge, for the respondent. [MAJORITY — Hotchkiss, J.;] Hotchkiss, J.; If, Tby any reasonable construction of the article, it could be said that plaintiff was charged, in his professional capacity, with an act involving such a degree of moral turpitude as would tend to bring him hito disrepute with honorable men, I should be willing to admit, although but a single isolated act of such character was charged, that it would be libelous (Church v. Tribune Assn., 135 App. Div. 30, 32), and that the fact that no general professional incapacity was imputed would be of no significance. But, it appears that plaintiff was employed by and prepared the alleged defective plans under direction of his employer, the city, after plans which included a filtration plant had been rejected because of their expense, and that such defective plans omitted the filtration plant at the instance and to suit the purposes of the city. Under these circumstances it cannot be said that plaintiff exercised any professional discretion in preparing the plans alleged to have been defective, or that he did anything more than comply with the express directions given to him by those whom he served, assuming no professional responsibility for the alleged hygienic deficiency of "the plans because of the absence of the filtration plant. It is nowhere alleged that plaintiff was ever an official of the city or even that he was generally referred to or known as such. Plaintiff, therefore, can have no benefit from the innuendoes which attempt to enlarge the plain meaning of the words of the article. For the same reason that portion of the article referring to the alleged insult to “Kate ” cannot be taken as in any way referring to plaintiff. The article, thus interpreted, contains nothing libelous per se, and as there is no special damage alleged, the demurrer was good. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOUT OPINION.