The defendant is charged with having composed and published a libelous affidavit which charged the plaintiff with using insulting and abusive language to her and conducting himself in a boisterous and ungentlemanly manner in her presence, and accosting and touching her shoulder with his shoulder and threatening to push her from her position on the floor of an apartment house down the stairs, accompanying such conduct with abusive language, which is set out, and which, used in the presence of a woman, is undoubtedly conduct which would be unbecoming a gentleman.
It is further alleged that the speech and conduct of the plaintiff at the time were such as to arouse in her a fear that plaintiff would use physical force to accomplish his purpose, and that such conduct caused the defendant to suffer humiliation, mortification and mental stress, and that the acts so performed were without provocation on the part of the defendant. This likewise is a charge of unbecoming behavior in a superior officer of a department of government.
The plaintiff is a member of the fire department of the city of NeW York and an officer thereof, and the conduct described and the language charged to have been used indicated that plaintiff was guilty of conduct for which he might be brought to trial by his superior officers and, if convicted, dismissed from the service of the fire department.
*664That the charge was intended to affect the plaintiff in his office is established according to the allegations of the complaint by the fact that the defendant did publish the libelous matter by mailing the same to the fire commissioner of the city of New York, plaintiff’s immediate superior. It is alleged, too, that such publication resulted in an investigation of the plaintiff’s personal character by the plaintiff’s superior officers in the fire department, and that this caused him damage in his office as captain of the fire department of the city of New York.
We think that a charge so contained in an affidavit intending to bring about disciplinary punishment on the part of the plaintiff’s superior officers, and which would, in the normal course of events, result in affecting him in his capacity as such officer, tends to charge the plaintiff with an unbecoming act which would expose him to contempt, ridicule or disgrace.
The offense charged is one commonly regarded as an act and behavior not committed by a person conducting himself properly in organized society and among civilized people, and reflects upon his character in such wise as to expose him to ridicule and disgrace. Any accusation of conduct which would import a disgraceful charge is libelous per se. A charge which would warrant the removal from office of a public officer must be considered as one which in common speech would be regarded as disgraceful, and could thus affect him in his official capacity.
We think that the allegations are sufficient to support an action for libel, are libelous per se, and that it is not necessary to allege special damage.
The order should be affirmed, with ten dollars costs and disbursements, with leave to the defendant to answer within ten days upon payment of said costs.
Dowling, P. J., and O’Malley, J., concur; Martin and Sherman, JJ., dissent.