from through the grantor's land, with a covenant of warranty; and the court held that this did not preclude the grantor from sinking another spring on his land at some distance from the one granted, although the effect of it was to render the latter useless, provided such act was not done unnecessarily or maliciously. In that case the parties were regarded in the same light as adjacent owners, and the rule was applied that the defendant might law fully dig on her own ground, though the effect was to cut off the water from the plaintiff's spring by percolation. But there was no grant in that case of any particular supply of water from the spring or from the defendant's lands. The grant was merely of the right to the spring, and secured the plaintiff no greater rights than such as he would have had if he had owned the land on which it was situated." Thus it clearly appears that that case was unlike the one of Johnstown v. Veghte, supra. The latter case was more like the one now before us. In concluding the opinion it was said: "In this case the grant was of the use of the water which at the time of the grant was being conducted from the spring, and the intent was to secure the continuance of that supply of water, it being essential to the operation of the cheese factory conveyed." In the case in hand, as we have already intimated, the grant was of the use of a specified quantity of water to be taken from a specified spring, and the acts and efforts of the plaintiff were in the direction well calculated to secure to him the water granted; the quan. tity granted from the site mentioned in the grant from the spring described in the grant.

It is claimed by the learned counsel for the respondent that the burden imposed cannot be made greater than it was at the time of the execution of the conveyance, and he has called our attention to Roberts v. Roberts, 7 Lansing, 55; S. C. affirmed 55 N. Y., 275. We do not understand that this is in conflict with the views already expressed, for, as we understand it, it is held "that the burden imposed cannot be made greater than it was at the time of the conveyance." According to the evidence the plaintiff's right secured by the grant, and the privileges of the easement mentioned therein, are valuable and important, and are entitled to the protection of a court of equity. The foregoing views lead to the conclusion that the result at the special term was erroneous. Judgment reversed, and a new trial ordered, with costs to abide the event.

MARTIN and MERWIN, JJ., concur.

BURR MATTICE, Resp't, v. HENRY WILCOX, App'lt.

(Supreme Court, General Term, Fourth Department, Filed. February 20, 1891.)

1. LIBEL-ATTORNEYS.

To publish concerning an attorney at law an article saying: Make him (the plaintiff) village attorney, so that any person that gets injured on the ice will be able to get large damages, is libelous.

2. SAME JUSTIFICATION-DEMURRER.

The answer alleged in justification that plaintiff had been attorney for the village in actions for injuries caused by icy and defective streets, in

which the plaintiffs recovered judgments for $1,000 and $4,000, respectively. Held, that this constituted new matter under § 494 and was demurrable; that as it was not alleged to be a partial defense, it must be tested as a complete defense, and as such was defective, because not coextensive with the charge in the publication.

APPEAL from a decision and judgment thereon entered in Otsego county, sustaining a demurrer to the second defense in the defendant's answer. Plaintiff's complaint alleges "since September, 1879, he has been an attorney and counsellor at law engaged in the business of his profession as a means of livelihood in the village of Oneonta, Otsego county, N. Y., and has been for about two years last past, and is now, attorney for the village of Oneonta, N. Y." It then sets out the publication made by defendant, as follows: "Make Burr Mattice attorney for the village, so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village," and avers, "that said defendant in said libel referred to meant the plaintiff in this action, and did by said libel charge and intend to charge the plaintiff with want of knowledge, care and skill in his professional capacity as a lawyer, and with being negligent, dishonest and corrupt in his said professional capacity."

By his second defense, the defendant states that he "alleges and will prove, as matters of justification of publishing said alleged articles, that Burr Mattice and his partner, W. J. Palmer, did commence an action against said village to recover damages for one Cunningham for injuries caused by falling on icy sidewalks, and a judgment for over $1,000 was obtained in said action against said village; that while said action was pending, said Mattice claimed to be retained by said village as attorney; that about the same time another action was tried against said village, in which the plaintiff in said action recovered a verdict of $4,000 and costs, for injuries received because of defective streets, the said Mattice acting as one of the attorneys for said village."

F. R. Gilbert, for app'lt; William H. Johnson, for resp't.

We

HARDIN, P. J.-Plaintiff in a plain and concise manner has stated the facts constituting his cause of action. Section 535 provides that a complaint in an action for libel need not state any extrinsic fact for the purpose of showing the application to the plaintiff of the defamatory matter, "but the plaintiff may state generally that it was published or spoken against him.' think it was permissible to the plaintiff to demur to the second count of the defendant's answer. Section 494 of the Code provides, viz. "The plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer on the ground that it is insufficient in law upon the face thereof." We think the allegations contained in the second defense constitute new matter under the rule prescribed by the Code. See Code of Civ. Pro., $$ 500, 494.

In Thompson v. Halbert, 109 N. Y., 329; 15 N. Y. State Rep., 513, it was held, viz.: "Where new matter is set forth in an answer, and it is not expressly stated therein to be a partial defense, as prescribed by the Code of Civil Procedure, § 508, it must be

assumed that the new matter alleged is pleaded as a complete defense, and, if demurred to, it must be tested as such." Besides the defendant in his answer says: "As a second defense," that he "alleges and will prove as matters of justification of publishing said alleged articles." Thereafter he inserts what he maintains is a justification of the libel set out in the complaint. The rule that a justification in an answer must be as broad as the charge which it seeks to justify was re-affirmed in Hathorn v. Congress Spring Co., 44 Hun, 608; 8 N. Y. State Rep., 511. We think the justification is defective in not stating the particulars and facts tending to establish the truth of the alleged libellous words. The answer is not co-extensive with the charge in the publication; it is, therefore, defective. Fidler v. Delavan, 20 Wend., 57; Sterling v. Sherwood, 20 Johns., 204. The answer fails to show that the plaintiff is guilty of the offense imputed to him in the language set out in the complaint.

We think the words found in the complaint were libelous within the rule laid down in Sanderson v. Caldwell, 45 N. Y., 398, and we think the language used by Andrews, J., in that case is applicable to the case before us, when he said: "Considering the language of the libel in connection with the extrinsic facts proved, that the plaintiff was, at the time, a lawyer engaged in the practice of his profession, it is a just inference that the words used related to him in his professional character. * * * When the -words spoken have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff"; same case, p. 405; Bergmann v. Jones, 94 N. Y., 52. În Cruikshank v. Gordon, 48 Hun, 308; 15 N. Y. State Rep., 897, it was said that "a charge made maliciously in respect to the professional capacity of a person which, if true, would render him unworthy of employment, is actionable per se."

In Henderson v. Commercial Advertiser Association, 46 Hun, 505; 12 N. Y. State Rep., 649, it was said, viz: "The plaintiff is a lawyer and notary public, and the words are charged to have been published concerning him. This is a good cause of action. It is not necessary to set forth extrinsic facts showing the application to plaintiff. Code, § 535. And none are needed to show the words to be capable of a libelous meaning in themselves. None other seems possible." The learned counsel for the appellant calls our attention to Kingsbury v. Bradstreet, 116 N. Y., 211; 26 N. Y. State Rep., 520, but in that case "the words and character of the circular, standing by themselves, were incapable of a defamatory meaning." It was, therefore, held, that "in the absence of averment and proof of facts showing that they had a latent meaning of that character, there was no question of fact for the jury." We see nothing in the case which aids the contention of the appellant. We are quite well satisfied with the views

expressed in the opinion of the learned judge at special term. We sustain the conclusion reached at the special term.

Judgment affirmed, with costs, with leave to the appellant to amend his answer upon payment of the costs of the demurrer and of the appeal.

MARTIN and MERWIN, JJ., concur.

GEORGE D. SMITH, Resp't, v. M. EDWIN SERVIS, App'lt. (Supreme Court, General Term, Fifth Department, Filed April 16, 1891) COSTS-DEPOSITIONS TAKEN BY VIRTUE OF STIPULATION.

Depositions taken by virtue of a stipulation come as clearly within SS 870, 871, as do those which are taken in pursuance of an order of the court, and a prevailing party is entitled to costs under § 3251, subd. 3, for taking such depositions.

APPEAL from an order of the special term of Monroe county, entered on the 7th day of January, 1891, directing a retaxation of the defendant's costs.

Arthur E. Southerland, for app'lt; George F. Yeoman, for resp't.

MACOMBER, J.-On the taxation of the defendant's costs objection was made to seven items of ten dollars each, for taking the depositions of the plaintiff and his six witnesses in the city of New York, but the objection was overruled by the taxing officer and such costs were taxed. Upon appeal to the special term for retaxation, that court directed that such items be struck out; and from the order entered thereon this appeal is taken.

The place of trial of this action was originally in the county of New York, but upon motion of the defendant it was changed to the county of Monroe. On the plaintiff's appeal from that order to the general term, in the first department, the order was modified so as to require the defendant to stipulate that the evidence of the plaintiff and his witnesses should, at the election of the plaintiff, be taken before a referee in the city of New York; accordingly a written stipulation was entered into by the attorneys for the respective parties for the taking of such testimony before a referee. The testimony of the plaintiff and his six witnesses was so taken in pursuance of the stipulation.

By subdivision 3 of § 3251 of the Code of Civil Procedure the sum of ten dollars is given as costs "for taking the deposition of a witness or of a party, as prescribed in § 870, § 871 or § 893 of this act." No question is made but that the defendant is entitled to ten dollars costs for each of the seven witnesses so examined, if anything. By § 870 the deposition of a party may be taken at any time before the trial as prescribed in this article." By § 871 the deposition of a person not a party may be taken "as prescribed in this article." The learned justice at the special term has apparently held that where depositions are taken by stipulation and not by order of the court upon motion, such costs are not allowable. He has for the support of that conclusion the decision of the special term of the superior court of the city of New

York in the case of Newman v. Greiff, 3 Civ. Pro., 362, where it was held that there is no right given to costs to the prevailing party for taking a deposition pursuant to stipulation. We cannot concur in this view of the construction of these several sections of the Code.

By 879 it is provided that "the parties to an action may stipulate in writing that the deposition of a competent witness to be used therein may be taken before a judge or referee at a time and place specified in the stipulation, either orally or upon interrogatories to be agreed upon in like manner.'

Depositions taken under this section by virtue of a stipulation. come as clearly within §§ 870 and 871 as do those which are taken in pursuance of an order of the court under other sections of the same article of the Code. The testimony of the plaintiff was taken as prescribed by 870, and that of his several witnesses as prescribed by § 871. These two sections relate to all cases where depositions of a party, or of persons not parties, may be taken under this article of the Code. They constitute the authority for this procedure, and the succeeding sections above referred to relate to the mode of adducing the testimony. They control equally the cases where witnesses are examined by virtue of a stipulation under § 879 as those taken in pursuance of an order of the court made upon affidavits under §§ 872 and 873. The order appealed from should be reversed, with ten dollars costs and disbursements.

DWIGHT, P. J., and CORLETT, J., concur.

THE PEOPLE ex rel. EDWARD ROSSNEY v. JULIUS ARMBRUSTER et al., comprising the executive board of the city of Rochester. (Supreme Court, General Term, Fifth Department, Filed April 16, 1891.) VETERANS-STREET SUPERINTENDENT OF ROCHESTER NOT WITHIN THE ACT

The superintendent of streets of the city of Rochester is a deputy of the executive board, which is a department of the city, and hence is not included within the class of persons named in chap. 119, Laws of 1888, as amended by chap 67, Laws 1890, who cannot be removed except for cause shown and after a hearing had, but comes within the exception contained in said act.

MOTION by the defendants for a new trial on exceptions taken at the Monroe Circuit, and ordered to be heard at the general term in the first instance.

Francis J. Hone, for def'ts; Eugene Van Voorhis, for relator.

PER CURIAM.-The relator, being an honorably discharged soldier of the late war, was superintendent of streets of the city of Rochester, under the appointment of the defendants, who constitute the executive board of the city. The relator was removed from that post on the 30th day of April, 1890, without any charges against him and without a hearing, and his place filled by another person. It is now contended by counsel for him that his removal was unlawful and in violation of chap. 119 of the Laws of 1888, as amended by chap. 67 of the Laws of 1890. on