and 121 New York State Reporter

Atl. 869. This proof destroys the privilege, for there is no privilege to lie, except in a case of absolute privilege.

To inadvertently cite in the case of unprivileged libels and slanders the law on this head which is applicable to libels and slanders published on a qualifiedly privileged occasion, causes endless confusion. Some text-writers, by detaching from their context expressions in judicial opinions, and putting them in a context to which they do not apply, have produced books on libel and slander which are worse than worthless. The discriminating work of Mr. Odgers does not belong to this class. Odgers, c. 9; Prince v. Brooklyn Eagle, 16 Misc. Rep. 186, 37 N. Y. Supp. 250.

The justification for this digression is that trial judges have been confronted by counsel with this obviously fallacious dictum for a long time in the trial of causes, and they feel that they ought to be rid of it. The learned trial judge who tried the Crane Case kept clear of it, as trial judges generally do; and the important thing is that his charge was affirmed, and that is the full extent of the actual decision of the Court of Appeals. If the learned trial judge had charged that it was incumbent on the plaintiff to prove that the libel was false in order to prove malice and thereby get smart money, and the verdict had been for only nominal damages, who will say that the judgment would not have had to be reversed? And yet this is what trial judges would do if they were to accept as law the dictum repeated in the Crane Case.

This matter of smart money is common to all actions for torts against the person, and not peculiar to libel and slander (Taylor v. Church, 8 N. Y. 460); and until the advent of the dicta of some quite modern judicial opinions in this state in libel and slander actions, there never was any trouble about it. It was formerly just as plain and simple a matter in actions for libel or slander per se as it was and still is in actions of battery, crim. con., false imprisonment and malicious prosecution. Tillotson v. Cheetham, 3 Johns. 64, 3 Am. Dec. 459. The motion for a new trial is denied.

(92 App. Div. 445.)

PEOPLE ex rel. HART et al. v. GOODRICH et al.

(Supreme Court, Appellate Division, First Department. 1. OFFICERS-VACANCY-ELECTION-COMPUTATION OF TIME.

March 18, 1904.)

Under Const. art. 6, § 4, providing that when a vacancy shall occur in the office of Justice of the Supreme Court it shall be filled at the next general election "happening not less than three months" after it occurs, such a vacancy occurring on August 2d was properly filled at the general election on November 3d following, especially in view of Laws 1892, p. 1490, c. 677, § 26, providing the method of computing the number of months from a given date in statutory provisions.

2. QUO WARRANTO-PLEADING-GENERAL AND SPECIFIC ALLEGATIONS-SUF

FICIENCY.

Even if general allegations in quo warranto that defendants have usurped and unlawfully held office are sufficient, standing alone, to state a cause of action, where the complaint further states the specific facts constituting the alleged unlawful holding, and these are insufficient to state a cause of action, the entire pleading is insufficient.

Appeal from Special Term, New York County.

Quo warranto by the people, on the relation of Coleridge A. Hart and others, against William W. Goodrich and others. From a judgment sustaining demurrers to the complaint, plaintiffs appeal. Affirmed.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Coleridge A. Hart, pro se.

Joseph A. Burr, for respondents.

O'BRIEN, J. The plaintiffs seek in this action to determine the right of the four defendants to hold office as Justices of the Supreme Court in the Second Judicial District of the state of New York. `Each of the defendants demurred to the complaint on the ground that there had been a misjoinder of causes of action, in that the offices held were separate and distinct, and on the further ground that there were insufficient facts stated to constitute a cause of action. On the ground that causes of action were improperly united the demurrers were sustained, and from final judgment thus entered this appeal is taken.

The complaint avers that prior to the general election of November 3, 1896, the four defendants were nominated as candidates for Justice of the Supreme Court in the Second Judicial Department, to be voted for at said. election, and at that time there were only three judicial positions or vacancies lawfully to be filled at said election; that there was a fourth vacancy caused by the death on August 3, 1896, of Calvin E. Pratt, Justice of the Supreme Court in the Second Judicial District, but, by section 4 of article 6 of the Constitution of the state of New York, it was and is provided that such vacancy shall be filled for a full term at the next general election happening not less than three months after the occurrence thereof, and such a general election did not occur on November 3, 1896; that upon the said election of 1896 the names of the four defendants were grouped together in a single vertical column, and there was nothing on the ballots to indicate which of the said defendants the voters casting the same intended to elect in case there were but three instead of four vacancies; that on and after the 1st day of January next succeeding said general election the four defendants, each and all of them claiming and asserting that they had been elected thereat as such Justice of the Supreme Court in said Second Judicial District, attempted to qualify and act, and entered upon the duties of office; that the vacancy caused by the death of Calvin E. Pratt could not lawfully be filled until the general election of November 3, 1897, and at such time the relator herein was duly voted for and elected his successor, but the defendants have withheld from him such office and have jointly and severally usurped the same. Judgment is asked "upon the pretended rights of said defendants and each of them to hold the office of Justice of the Supreme Court in the Second Judicial District," and also upon the right of the relator to hold said office.

Without passing upon the question of whether or not there is a misjoinder of causes of action, upon which ground the learned judge. at Special Term dismissed the complaint, we think that upon the

and 121 New York State Reporter

other ground, that there are insufficient facts stated therein to constitute a cause of action, the demurrers should be sustained.

The precise words of section 4 of article 6 of the state Constitution are as follows:

"When a vacancy shall occur otherwise than by expiration of term in the office of Justice of the Supreme Court, the same shall be filled for a full term, at the next general election, happening not less than three months after such vacancy occurs."

The complaint shows that the vacancy, which it is contended was not properly filled by the election of the defendants, occurred on August 3, 1896, and that the election in question took place on November 3, 1896. At the date of the election, therefore, exactly three months had expired; and hence that election was not, by the terms of the Constitution, one forbidden for the purpose of choosing a successor to fill the vacancy. The prohibition is that it should occur at a time not less than three months, or, differently stated, the election should be at least three months after the vacancy. The 2d of November would have been less than the prescribed time, but the 3d of November, 1896, happened "not less than three months," or exactly three months, after the vacancy.

The statutory construction law (section 26, c. 677, p. 1490, Laws 1892), although it has no application to or bearing upon the Constitution of the state, is not without use by way of analogy, in pointing out how statutes or laws should be construed. Therein it is provided that "a number of months after a certain day shall be computed by counting such number of calendar months from such day exclusive of the calendar month in which such day occurs and shall include the day of the month in the last month so counted having the same numerical order in days of the month as the day from which the computation is made." Adopting this rule, the 3d of November would mark the completion of three months from the death of the justice whose office it is claimed has been wrongfully held, and hence the election did not occur at a time "less than" the three months.

The appellants' contention is that November 4th would have been the first date upon which an election could properly be held, as that was the first day over three months from the time the vacancy occurred. This contention would be good if the provision of the Constitution was that the election must be one happening over three months from the time of the vacancy; but the Constitution, as stated, provides that the election must be one "happening not less than" three months, so that three situations may occur, namely, a time less than three months, at which time no legal election may take place; exactly three months, and over three months, at which times a proper election may be held. According, however, to the view of the appellants that an entire three months must elapse before the happening of the election, then, strictly measuring the elapsed time, the vacancy occurred in the morning of August 3, 1896, and the election "happened" at the time the votes were cast (People ex rel. Le Roy v. Foley, 148 N. Y. 677, 43 N. E. 171), which was when the poles were closed at 5 o'clock November 3d, so that there was over three months of elapsed time.

That the construction which we have given, however, to the constitutional provision is the one ordinarily adopted in analogous cases appears from a reference to the authorities, among which may be cited People v. Burgess, 153 N. Y. 561, 47 N. E. 889, and Jones v. Wallace, 75 App. Div. 401, 78 N. E. 35. In the Burgess Case the court construed section 1042 of the Code of Civil Procedure, which directed the county clerk to draw trial jurors on a day not less than 14 days before the day appointed for holding each trial term, and, a trial term having been appointed to be held on March 16th, a drawing on March 2d was held good, the difference being exactly 14 days. And in the Wallace Case, under a statute providing that service of a summons shall be made not less than six days before the return day thereof, service on November 29th of a summons returnable December 5th was held good-a difference of exactly six days. In this complaint there are general allegations that the defendants have usurped and unlawfully hold office, and if these stood alone they might be sufficient to require an answer (People ex rel. Crane v. Ryder, 12 N. Y. 433); but the complaint goes further, and specifies the facts from which is made to appear the ground or theory upon which the plaintiff claims that the alleged unlawful holding arises, and these specific allegations being insufficient, because not stating a cause of action, it follows that the pleading itself is insufficient. Abbotts Trial Brief on Pleadings, § 63.

We think, therefore, that the demurrers should be sustained, and the judgment entered dismissing the complaint was right, and should be affirmed, with costs.

PATTERSON, MCLAUGHLIN, and LAUGHLIN, JJ., concur. VAN BRUNT, P. J., concurs in result.

(91 App. Div. 526.)

FISHER v. NEW YORK DOCK CO.

(Supreme Court, Appellate Division, Second Department. March 11, 1904.) 1. NEGLIGENCE-RES IPSA LOQUITUR.

Defendant dock company, as incident to its business, operated a short line of railroad, over which it moved cars between its docks and warehouses, it having complete management and control of the cars thereon. While plaintiff was removing freight in a car on a side track, to which he had been taken for that purpose by an employé of defendant, the car was violently moved, injuring him, by the rear wheels of the second of two cars, which were being moved from a siding onto the main track, failing to follow the switch track, whereby the car was derailed and drawn against that in which plaintiff was at work. Held, that the facts furnished evidence of defendant's negligence, which, in the absence of explanation, authorized a verdict for plaintiff.

Action by Charles Fisher against the New York Dock Company. The complaint was dismissed, and plaintiff moves for a new trial on exceptions directed to be heard in the first instance at the Appellate Division. Motion granted.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

and 121 New York State Reporter J. Stewart Ross, for plaintiff.

H. Snowden Marshall (George H. Abbott, on the brief), for defend

ant.

WOODWARD, J. The plaintiff brings this action to recover damages for personal injuries, alleged to have been sustained through the negligence of the defendant's servants. The defendant is a domestic corporation, controlling warehouses in the borough of Brooklyn, and as incident to its business operates a short line of railroad, over which it moves cars from the warehouses to the docks, etc. On the 26th day of August, 1901, the plaintiff called at the office of the defendant for some freight. The defendant sent one of its employés with the plaintiff to a car standing upon a side track, with another car in front of it, and some cars about to feet distant behind it. The car was opened by the defendant's employé, and the plaintiff, with his helpers, began removing the freight. At about 2 o'clock in the afternoon, while the plaintiff was inside of the freight car, assisting in removing some radiators to the plaintiff's truck standing at the side of the car, a collision occurred with the car in which the plaintiff was at work, a radiator was thrown upon him, and he sustained the injuries for which he now seeks recovery. The plaintiff proved this state of facts in some detail, gave evidence of his damages, and rested. The defendant moved to dismiss the complaint upon the ground that the plaintiff had failed to prove a cause of action, failed to show any negligence on the part of the defendant, and on the ground that there was no proof that the accident was in any way caused by the negligence of the defendant, but, as far as the proof went, it might have been caused by the negligence of some other person or corporation. This motion was granted, and the question is before us on this appeal whether the plaintiff had established facts entitling him to go to the jury.

The plaintiff urges that this is a case for the application of the doctrine of res ipsa loquitur, and we are of opinion that he is correct in this claim, to the extent that the facts disclosed presented a case for the jury. It appears from the evidence that the defendant operated a locomotive, which shifted the cars over its tracks and sidings, and that while moving two cars from a siding out onto the main track the rear wheels of the last car failed to follow the switch track, and the car thus derailed was drawn against the end of the car in which the plaintiff was at work in such a manner that the car was violently moved, causing the injuries. In this case the defendant had the complete management and control of the cars upon its tracks and sidings. It had such management and control of the thing which caused the injury, and the accident happened under such circumstances, that the plaintiff had no reason to anticipate its occurrence. Under such circumstances, under the rule laid down in Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630, we are of opinion that there is evidence of the defendant's negligence, which it is bound to explain.

Under the circumstances of this case, where the duty owed to the plaintiff was not that of a common carrier of passengers, but that ordinary care which it was reasonable to expect in a freight yard where cars were being unloaded and moved about, the happening of the ac