122 N.Y.S. 531 | N.Y. App. Div. | 1910
The odium of the article is that the Attorney-General, backed up by the Insurance Department, contends that the capital and the surplus certified as having been paid in in cash were to a large extent fictitious. Ho charge of any fault is made against the plaintiff save as it may be inferred from the statements that he was a promoter and is the president of the company. It is not charged that the capital and surplus are fictitious, but that they were fictitious when certified. ;
Examination of the general statutes then applicable shows that a certain number of persons could become a corporation for fire insurance purposes by filing in the office of the Superintendent of Insurance a declaration, signed by all of them, of intention to form a corporation comprising certain specified particulars, including the amount of capital, which ■ could not be less than $200,000, fully paid in in cash. Before it could carry on business a certificate of the Superintendent of Insurance that it had complied with all the requirements of‘law was necessary. But the Superintendent could not file the declaration or charter or grant such certificate until they were certified by the Attorney-General. (Ins. Law [Laws of 1892, chap. 690], §§ 10, 12,110, as amd. by Laws of 1893, chap. 725 ; Laws of 1898, chap. 171; Laws of 1900, chap. 366, and Laws of 1907, chaps. 206, 503.) After approval of the Attorney-General the statute (Ins. Law, § 11, as amd. by Laws of 1893, chap. 725, and Laws of 1906, chap. 326) provided: “ Examination by superintendent.— If the declaration and charter specified in the preceding section shall be approved by the Attorney-General, the superintendent shall thereupon cause an examination to be made by himself or- by one or more competent and disinterested persons,
But it is contended that the article is libelous per se. Words that disparage an officer, professional man or trader are not actionable per se. They “ ‘ must touch the plaintiff in his office, profession, or trade; ’ that is, they must be shown to have been spoken of the plaintiff in relation thereto, and to be such as would prejudice him therein. They must impeach either his skill or knowledge, or attack his conduct therein.” (Odgers’ Lib. & Sland. [3d ed.] 73, and cases cited.) The same author further writes: “‘Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff’s office, trade or business.’ (Per Bayley, B., in Lumby v. Allday, 1 Cr. & J. at pp. 305, 306, cited with approval by Lord Denman, C. J., in Ayre v. Craven, 2 A. & E. at p. 8, and by Lord Herschell, L. C., in Alexander v. Jenkins (1892), 1 Q. B. at p. 800.)” The business of the.plaintiff, so far as we are informed, is that of president of ah insurance company. The charge virtually
I advise that the interlocutory judgment be reversed, with costs, and the demurrer be sustained, with costs.
Burk, Thomas, ¡Rioh and Care, JJ., concurred.
■ Interlocutory judgment - reversed, with ' costs,;' and- demurrer sustained,, with' costsi ; . - $