(dissenting):
I dissent. The complaint is that the alleged libelous articles - were “ maliciously made, composed' and published concerning the plaintiff in his said office of Police Commissioner.”
The first plea in defense states the occasion for writing said letters, i. e., the refusal of the plaintiff to take the photograph and measurements of the Duffy boy from the so-called “ Rogues’ Gallery ; ” the confirmed practice of the police to take photographs and make measurements of persons arrested, hut not convicted, after Mr. Justice Bueb had decided in a proceeding to which the plaintiff was a party that that practice was illegal, and the advice *314given by the plaintiff to one Kuhne, who had been convicted of contempt of court, to resist the court orders and to refuse to apologize and thereby purge himself of said contempt. The plea then avers that the matters of fact stated- in the letter are true “ and the opinions therein fair comment on the said acts of the plaintiff, and only such as to bring properly before the said Mayor the official misconduct of the plaintiff, and were and are without malice; and the said statement and the said letter were privileged.”
Strictly speaking, the claim of qualified privilege only applies to the communication to the mayor, and the plea is in complete defense of all the publications. However, I think it is good as a complete defense. The subject of the articles, i. e., the official conduct of the plaintiff and of the police was a matter of public concern. The press and any citizen had the right, fairly and in good faith, to comment upon it.
If the statements of facts were true, the comments thereon fair and the defendant’s motives honest,, the publications were not libels, and the plea demurred' to presents those issues. Entire freedom of discussion of the public conduct of public men is permitted in this State. Fair and honest criticism is not defamation. The only limitation is'that the occasion must not be used to gratify malice or to assail private character. (Cooper v. Stone, 24 Wend. 434; Fry v. Bennett, 5 Sandf. 54; Reade v. Sweetzer, note, 6 Abb. Pr. [N.S.] 9; Hamilton v. Eno, 81 N. Y. 116; Mattice v. Wilcox, 147 id. 624; Triggs v. Sun Printing & Publishing Assn., 179 id. 144; Hoey v. N. Y. Times Co., 138 App. Div. 149.) Whether the deductions from a given state of facts are fairly drawn and honestly asserted must ordinarily be questions for the jury. (Vide cases cited supra, and Fay v. Harrington, 176 Mass. 270.)
As I read the articles there is not a word in them unequivocally referring to' the plaintiff which imputes bad motives or evil designs to him or in any way reflects upon his moral character, and the complaint itself negatives the claim that the plaintiff’s private character has been aspersed. Under the plea in question the defendant will be' permitted to give evidence of the truth. of. the specific statements of fact in the articles and the honesty of his purpose,.and thereupon will be entitled to goto the jury on the question of the reasonableness and fairness of his inferences. The plea, therefore, cannot be *315bad. For a case sustaining almost precisely such a plea see Kane v. Mulvany (Ir. R [2 C. L. S.] 402).
It is to be noted that the articles are pleaded as a whole without innuendo. Considered as a whole, they are an attack upon the practice of the police in measuring and photographing persons arrested but not convicted, and upon the plaintiff’s official conduct in approving and continuing that practice in the face of a decision of a justice of the Supreme Court, and in refusing to take the photograph of the boy Duffy from the so-called “ Bogues’ Gallery.” The plea in justification alleges that the statements, matters and things contained in said alleged libels are true, and supports that by specific averments of every fact therein stated and of many not stated, to wit: That in November, 1907, the police under the command of the plaintiff seized, photographed and measured one Frank Jenkins, who was at large on bail; that after Mr. Justice Bubb had decided in a case in which the plaintiff was a party that the police have no authority to measure and photograph persons and put their pictures in the “ Bogues’ Gallery ” unless on conviction of crime and sentence to prison, the police under the command of the plaintiff, with his knowledge, and in many cases under his personal advice and direction, “ continued to photograph, and to strip, measure and index as felons many hundreds of persons who had not been convicted and sentenced to prison; ” that the-plaintiff counseled and advised the officers under him to disregard said decision, and advised one Kuhne to defy the judgment of the Supreme Court convicting him of contempt of court, and to refuse to apologize and agreed to, and did, pay his fine, gave him a leave of absence while he was serving a term in jail and promised to reward him by a promotion; that with full knowledge of the decisions of the courts on the subject and the records the plaintiff refused to remove the photograph and measurements of the Duffy boy and stated openly and publicly that the treatment of him, as set forth in the alleged libelous articles and in the plea, was justified ; that with full knowledge of, and in violation of,-an injunction, granted about February 6, 1906, the plaintiff and his subordinates, acting under his direction and control, without a warrant or other legal process, entered certain premises named and annoyed, harassed and oppressed the occupants thereof.
It cannot be doubted that every statement of fact in the alleged *316libels is met by the plea. The characterizations and the general observations remain to be.considered. The ones pointed'out by the learned counsel for the appellant may be divided into two classes : (a) those of doubtful application; (b) those, unequivocally referring to the plaintiff.
(a) Those of doubtful application are the following: “ Scoundrelism hereinafter mentioned; ” “ outrageous violations of our laws and system of free government; ” “ criminal official wrongdoing and oppression,” and the paragraph.beginning “ Many thousands of false arrests are- being made here annually.” I think that all but the last refer to the treatment of the Duffy boy by the police, which is- narrated. At any rate a jury would be justified in so finding. The plaintiff is charged .with having- refused to direct the removal of the boy’s photograph, and with thereby allowing such treatment to continue. In effect the defendant said that lie had applied to the plaintiff on behalf of the boy for relief from what is characterized as “ sconndrelism,” “ outrageous violations of our laws and system of free goverment,” “criminal official wrongdoing and oppression” on the part of the police,” and that, having met with a refusal, he asked the mayor for relief, intimating that he might ultimately go to the Governor. The “ many thousands of false arrests ” are- not specifically or even inferentially charged as having been caused by the plaintiff, and the epithets “ incompetents, corruptionists, and sometimes buffoons ” do not necessarily refer to him. Of course, if they do, there is no attempt at justification. But the plural is used; a class referred to, which may include any number of the plaintiff’s predecessors, and any number of subordinate officers, who are or have been put in rulersliip over the men. on the force, and may or may not include the plaintiff. Certainly we cannot say as matter of law whether the ordinary reader would understand that all or any -particular one of those terms referred to the plaintiff. The expression, ■ “Men on the police force,” as commonly understood, does not include all the men in the department under the commissioner. An interesting nisi prius case, which happens to be at hand, may be cited for the proposition that the application of those words is for the jury. (Seymour v. Butterworth, 3 F. & F. 372.)
(b) The statement, “The Police Commissioner is doing all he can to make- it impossible for him to lead an honest life and make an *317honest living, and to force him instead to a life of crime,” is not to be construed apart from its context. It is merely the writer’s conclusion as to the effect of the plaintiff’s refusal to remove the boy’s photograph, and of the continued police persecution in consequence. I do not now think of any course of conduct which would be more likely to ruin a lad of nineteen- than that detailed in the letter and in the plea demurred to.
The reference to the plaintiff as tire “ offender ” relates to the seizure in November, 1907, of persons at large under bail, and is specifically met by the plea. The only other references to the plaintiff requiring notice are the following: “ But it is an ordinary thing for the Police Commissioner to refuse to obey the decisions of the courts and compel the police force to disobey them. Many instances can' be cited.” “ He is possessed of the most dangerous and destructive delusion that ofiicials can entertain in a free government, namely, that lie is under no legal restraint whatever, but may do as he wills, instead of only what the law permits, and that only in the manner it prescribes.” “ The despotism and lawlessness of the Police Commissioner is shocking to every American who knows what free government means and what it cost in property and blood of our ancestors to acquire it.” At least four specific instances' are averred in justification of the first charge, last above quoted. Moreover, it was not necessary to specify every one of the “many hundreds ” of cases in which men were photographed in disregard of Mr. Justice Burr’s decision. The paragraph next quoted does' not import a charge of insanity, as is said, nor does it reflect upon the plaintiff’s private character. It is the concluding observation of the writer upon the plaintiff’s official acts, previously narrated. The words “ despotism and lawlessness ” in the last quotation do not import a charge of general lawlessness, but refer to the specific acts under discussion. The defendant defined what he meant by “ despotism,” and obviously the word “ lawlessness ” was used much in the same sense.
The plaintiff has limited his complaint to the publications as a whole, and, therefore, cannot require the defendant to plead to his construction of isolated words and phrases. The charge consists of statements of fact and of comments thereon. The plea fairly meets all of said statements and avers other facts in further justifi*318cation of the comments. It will be for the jury to determine the meaning and application of the comments and to. say whether they were justified. We cannot rulé that the plea is'not as broad as the charge, simply because we may' think some of the defendant’s animadversions too severe, though I am far from suggesting that the facts averred did not justify vigorous comment, or that they do not justify the charge," even upon the plaintiff’s own construction, except as to the words “ incompetents, corruptionists, and sometimes buffoons.”
It follows that the pleas in defense are not open to attack by demurrer; indeed I think they were scientifically drawn to. meet the complaint, and, therefore, vote to affirm the interlocutory judgment.-
Dowling, J., concurred.
■ Judgment reversed, with costs, and demurrér sustained, with costs, with leave to defendant to amend on payment of costs.