Kinney v. Nash (3 N.Y. 177, 1849)

Jewett, Ch. J.

The principle is well settled that to maintain an action for words spoken, the words must either have' produced a temporal loss to the plaintiff, by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the party to an infamous punishment, or they must impute some indictable offence, involving moral turpitude, or the breach of some public trust, or with some matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment. (2 Kent’s Com. 15, 5th ed.; Brooker v. Coffin, 5 John. 188; Van Ness v. Hamilton, 19 id. 367; McCuen v. Ludlum, 2 Harr. N. J. Rep. 12; Dole v. Van Rensselaer, 1 John. Cas. 330.)

It is also a general rule that “ words not actionable in themselves, are not actionable when spoken of one in an office, profession or trade, unless they touch him in his office, &c. (Com. Dig. Action on the Case for Defamation, D. 27; Doyley v. Roberts, 2 Bing. N. C. 835; Van Tassel v. Capron, 1 Denio, 253.) It is riot enough that the words may tend to injure him in his office or calling, unless they are spoken of him in his official or business character. In Oakley v. Farrington, (1 John. Cas. 129,) the plaintiff was a justice of the peace, and the words were “ Squire Oakley is a damned rogue.” The plaintiff was nonsuited on the ground, that although the words were spoken of a magistrate, they had no relation to his official character or conduct, In Ayre v. Craven, (2 Ad. & Ellis, 2,) the words were laid to have been spoken of the plaintiff in his profession as a physician, and imputed adultery. After verdict for the plaintiff, the judgment was arrested. The court said, that after full examination of the authorities, they thought the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession. In Dole v. Van Rensselaer, (supra,) the words were spoken of the plaintiff in his office of sheriff, and affected him in his official character.

The declaration in this case commences with prefatory inducements of the plaintiff’s antecedent good character, and of his being a constable of the town of Hamilton in the county of Madison, and of having faithfully exercised and performed the duties of that office with honesty, &c. and of his innocence of the offences and misconduct imputed to him by the defendant; that an indictment for felony had been found and preferred in the court of general sessions of the peace in that county against one Henry Thomas, for the crime of burglary and larceny; that a warrant, commonly called a bénch warrant, had been regularly issued out of said court and delivered to the plaintiff, commanding him as such constable, in the name of the people,