(dissenting):
I do not agree to the. affirmance of this judgment. The alleged libel consisted of newspaper comment upon the removal of the plaintiff from the position of counsel for the Treasury Department of the United States before the Board of United- States General Appraisers in the city of New York. It states that certain newspapers had been insisting that the plaintiff’s removal was a flagrant violation of the letter and spirit of the Civil Service Law, while in truth and in fact it was neither. The article then stated—and in this statement was contained the alleged libel—“ Furthermore, the statement- has been emphasized that Mr. Gibson’s services were highly efficient’ and satisfactory The interesting fact is not mentioned that his removal was recommended on the ground of inefficiency as the result of an investigation of his office by the Department of the Special Agents of the Treasury something like two years ago.” The discussion was as to the act of the Treasury Depart-, ment in making the removal. The article did ■ not directly charge that the plaintiff had been inefficient in the discharge of his duties or incapable of performing them, or that the plaintiff’s- services *571were not highly efficient' and satisfactory. It called attention to the fact in commenting upon his removal that it had been recommended by certain public officers on the ground of inefficiency as a result of an investigation that these officers had made. There is no allegation of special damage, and to sustain the complaint it must appear from the article that these words were written in relation to the plaintiff’s profession, and that they had a tendency to or v^ere calculated to prejudice him therein. The plaintiff alleges that he is an attorney and counselor at law and that these words are such as would have a tendency to prejudice him in that profession, but to sustain the complaint it must appear by fair intendment that the words spoken, used in their ordinary sense, are such as would tend to have that effect. The article was a justification of the act of an official in removing the plaintiff based upon what is alleged to have been a report of the subordinate officers of the department; and while it is true that the law gives an action for words that affect a man’s credit in his profession as charging him generally in his profession with ignorance or want of integrity either in general or in particular (Mattice v. Wilcox, 147 N. Y. 630), to sustain an action the words used are to be construed fairly and naturally; the test is whether to the mind of an intelligent man the tenor of the article or the language used naturally imports such a charge. (More v. Bennett, 48 N. Y. 476.) In this case the report was said to relate to the efficient discharge of the plaintiff’s duties in the office that he held, and I do not think that this article exceeded the limit of proper criticism of a public officer, and that there was nothing in the article as alleged which justified the innuendo that the written words conveyed and intended to convey that the plaintiff was incapable of fulfilling the duties of said office; that his professional attainments were meagre; that he had been guilty of misconduct in his office, and that his removal had bee°n made on that account. If every charge of inefficiency against a public officer is libelous per se, without the election of special damage, it is difficult to see how the people would obtain knowledge of the efficiency of the public servants, as under our system of government, where all appointments to public office come either directly or indirectly from the people, it is essential that there should be the fullest opportunity of discussion and criticism as to the capacity and efficiency of those selected for such appoint*572ments. There is nothing in this charge as I look at it that related to the plaintiff’s professional character or ability as. a lawyer. It is alleged that certain special agents had reported that he was inefficient in the discharge of the duties o'f a certain public office, that he held. The charge was mades, not to procure his removal from office, but to sustain the public authorities in having removed him. I do not think that was a charge affecting him in his profession..
I think the demurrer should have been sustained.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.