(dissenting):
In the year 1907 the plaintiff was elected a member of Assembly in the.'thirteenth Assembly district in the city of New York, and entered upon the-discharge of his duties in the Legislature. His ■ course in voting against a certain bill relating to police matters in the city of -New York was disapproved of by several newspapers, including' the one published by the defendant, and it is in consequence of an article criticising his vote in opposition to that bill that it is claimed the defendant published a libel. The plaintiff had been elected to represent the residents of his district in the Legislature, and as such liis official acts were subject to criticism. It certainly is not libelous for the People to-call their representatives to account for official action claimed to be against the best interests of the city ; it is not a libel to allege that a particular vote was against the welfare of the city. ' It is settled-in this State that a citizen has a right to criticize the official acts of public officials. I agree that to say a public official acts disgracefully for private gain *159would be a libel, but to say that the action of a representative in the Assembly, or any other public body, is an injury to and disgraces the city or State, without imputing improper or corrupt motives, is criticism which, I think, comes within the qualified privilege. The question is discussed at length in Hamilton v. Eno (81 N. Y. 116). There is no dispute as I understand it as to the law, the only question being whether this publication does as a fact charge the plaintiff with anything more than that the effect of his vote was to injure the city and sustain the lawbreakers rather than uphold those who were trying to enforce the law. The article stated that this plaintiff and his associates had “ done what they could to strengthen the league of the police with gamblers, with harlots, with thieves, with all the sources of civil and moral corruption that the system ’ connotes,” and the roll of those who voted in a way that would accomplish this purpose was called a “ Roll of Dishonor.” I cannot see that there was here anything that impugned the motives of the plaintiff or charged him in any way with an improper motive in voting as he did. It seems to me that the distinction must necessarily be between a criticism of the official conduct as to its effect upon the community and impugning the motives of .the public official in the action that he has taken. Although this article may be severe, there is nothing in it that I can see that directly charges this plaintiff with an improper motive. What is said is that his action was against the best interests of the city and supported those who were opposed to public law and order, and that those who voted in that way composed a “ Roll of Dishonor.” But there is no charge of personal corruption; no charge of an improper motive, and every word may be true and. still the plaintiff may have acted from the most conscientious motives in voting as he thought best for the public welfare. Representative government would be impossible unless the People could freely criticize the official acts of their representatives, and as long as such criticism is directed towards the effect 'of the official acts of a public official it cannot'be a libel per. se, ándito sup'port an action based on such criticism there must be an allegation of actual malice.
What was said in Triggs v. Sun Printing & Pub. Assn. (179 N. Y. 144) does not apply to the right of the public to criticize one of its representatives. Whether or not this privilege exists I think *160is a question of law for the court and not for the jury,' and to submit to the jury the question as to whether the privilege existed or whether the article impugns the plaintiff’s motives would be allowing the jury to determine what is really a question of law that it is the duty of the court to determine. In order to sustain the view expressed in the prevailing opinion, the learned judge, recognized that this editorial .must be susceptible of a meaning that plaintiff was actuated by corrupt or other evil motives, and I cannot see that this article justifies such an inference. '
I think the court was right in disposing of the question as a matter of law and that the complaint was properly dismissed.
Clarke, J., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.