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DAILY v. DE YOUNG.

(Circuit Court, S. D. New York.

December 12, 1903.)

1. Libel — Pleading—Demurrer.

A demurrer to ilio complaint in a civil action for libel, raising the question whether the publication complained of is libelous per so, is not frivolous.

2. Same — Actionable Statements.

Statements in an article, published by defendant, intima!ing that plaintiff's methods in conducting tlio affairs of a mining company were recklessly extravagant, tend to injure him in his trade, occupation, or business, and are actionable per se.

Action for Libel. On motion for judgment on demurrer as frivolous.

Edward K. Jones, for the demurrer.

Franklin Bartlett, opposed.

¶ 2. See Libel and Slander, vol. 32, Cent. Dig. § 80.

*492LACOMBE, Circuit Judge.

The demurrer is not frivolous; the question whether the publication complained of is libelous per se is Certainly arguable. Defendant’s counsel, however, upon th‘e argument, expressed his willingness to have the court treat the case as if jt were submitted upon demurrer. The court, therefore, has analyzed ■the statements contained in the article complained of, and considered them in the light of the authorities cited by both sides. Without now undertaking to decide whether or not they are calculated to hold comiplainant up to contempt and ridicule, thejr do insinuate that his meth,.dds ¡bf. conducting the affairs of the mine referred to were recklessly 'extravagant, and therefore “tend to injure him in his trade, occupation; or business.” Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810.

■ The demurrer is overruled, with leave to answer in 20 days.

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