Where the proprietor of a theatre, for the sake of profit, deliberately places upon the stage a production which is bound to arouse controversy by the nature of its subject, or the manner of its treatment, and particularly where he offers for popular patronage a play which is offensive to the racial or religious sentiments of such public, or any considerable portion thereof, he must accept not only criticism of his offering but of his motives in voluntarily challenging the open hostility of the community at large, or of such section of it as he has chosen to attack. Instances are not wanting where such attack has heen deliberately made with the hope of consequent profit from the section of the community holding different views from the one attacked. In so far as the articles complained of referred to the business conducted by the plaintiff, they were criticisms directed against an enterprise which, while posing as a German theatre, and appealing for support solely to the German element in New York city, for reasons of its own chose to present a play which was repugnant to the ideas of Germans who still entertained an affection for the country of their birth. The feeling of hostility which might reasonably be supposed to be aroused by such a course of conduct was aggravated by the presentation of this play, having to do with the German military system, at a time *395when Germany’s relations with at least one other nation referred to were strained. For the proprietors of a German theatre to present a play involving issues vital to Germany and lying at the very root of the controversial issues then being vigorously debated, it seems to me was an open invitation to a discussion by Germans of its methods and motives which was bound to be severe and perhaps could not escape being abusive. So far as the English translation of these articles discloses, they contain such criticism as might be expected to be called for in response to the plaintiff’s production of the play, and having in view all the conditions under which the play was produced and the articles published, I do not think that they are libelous, or that they go further than might naturally be expected under such circumstances. There being no appropriate allegation of special damage, and the articles in my opinion not being libelous per se, I believe the demurrers to all the causes of action should have been sustained.
Scott, J., concurred.
Order reversed to the extent stated in opinion, with ten dollars costs and disbursements to appellant, and in other respects affirmed, without costs, with leave to defendant to withdraw demurrer and to answer as indicated in opinion. Order to be settled on notice.