CONCURRING OPINION.
Fenner, J.While the paragraphs in the City Item, prior to the card of January 21, 1882, referring to the Crescent City Railroad Company and the defendant as its president, were not conceived in a spirit of ultra x»olitoness, they pertained to matters of public interest entirely within'the province of journalistic comment and axe, in no sense, libelous or abusive. When corporations enter into contracts with a city touching subjects of such public character as the use of its streets, such contracts, their terms and obligations, and their proper execution, are fit subjects of legitimate criticism by the press; nor do I think that the president of such a corporation, who is generally the actor in the procurement and execution of such contracts, can claim immunity from the use of his name in articles upon such subjects.
While courts should not hesitate to rebuke and repress licentiousness of the press,.they should be careful not to emasculate its liberty in the exercise of its appropriate functions.
In absence of any proof of malice or intentional falsification, I think the articles, now referred to, furnished defendant no ground of legal complaint.
*46I seo no reason to doubt that-, liad tbe conclusive evidence of the mistakes under winch the paper labored, furnished by the defendant in his letter of January 20, 1882, been unaccompanied by the abusive and insulting language contained therein, it would have led to prompt correction and amend.
This language, however, while it provoked, did not, in law, justify the article published in the Item of January 21, 1882, in which defendant was denounced as an “irate swaggerer,” a “bulldozer,” an “arrogant blusterer,” ignorant of “ how to couch his ideas in polite and gentlemanly language,” etc.
The letter of defendant had not been published. The last-mentioned article of the Item was the inauguration of tlio newspaper warfare, which culminated in the card of defendant, which is the basis of this suit for libel.
This destroys the foundation of plaintiff’s ease., and brings him within those authorities which hold that “aman who, himself, commenced a newspaper war, cannot subsecprently come to the Court, as a plaintiff, to complain that he has had the worst of the fray.” Odgers on Slander and Libel, 228, 219.
“Where two parties engage in a newspaper controversy and hurl abusive epithets at each other they are both in the wrong, and neither of them should recover damages from the other.” Child vs. Homer, 13 Pick., 510. Finnerty vs. Tipper, 2 Camp, 72.
For these reasons, I concur in the decree herein.