the several states. Trade should be encouraged, not unreasonably restricted.

The complaint charges only two distinct sales, and we must assume the business conducted in this state is limited to these two transactions. This is not necessarily "doing business," within the meaning of the statute. In Penn Collieries Co. v. McKeever, supra, the plaintiff, a foreign corporation, sued to recover for a cargo of coal sold in the state of New York. It kept no coal, books of account, nor bank deposit in this state. The sale was an isolated transaction. The defendant endeavored to defeat a recovery, for the reason that the defendant had not procured a certificate authorizing it to transact business in this state. The Court of Appeals held that the plaintiff was not "doing business," within the contemplation of the statute. The court used this language at page 103 of 183 N. Y., and page 936 of 75 N. E.:

"To be 'doing business in this state' implies corporate continuity of conduct in that respect, such as might be evidenced by the investment of capital here. with the maintenance of an office for the transaction of its business, and those incidental circumstances which attest the corporate intent to avail itself of the privilege to carry on the business. In short, it should appear. as it was intimated in the opinion in People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159-165, 51 N. E. 1043, that the corporation and its officers intended 'to establish a continuous business in the city of New York, and not one of a temporary character.'"

Kindred cases are People ex rel. Tower Co. v. Wells, 98 App. Div. 82, 90 N. Y. Supp. 313, affirmed on opinion below, 182 N. Y. 553, 75 N. E. 1132; Vaughn Machine Co. v. Lighthouse, 64 App. Div. 138. 71 N. Y. Supp. 799. In Welsbach Co. v. Norwich Gas. & El. Co., 96 App. Div. 52, 89 N. Y. Supp. 284, affirmed 180 N. Y. 533, 72 N. E. 1152, the complaint alleged that the plaintiff, a New Jersey corporation, "has an office and offices within the state of New York." It further alleged a sale of merchandise from "the New York, N. Y., department," and also other sales "from its Buffalo, N. Y., department.' There were, therefore, definite allegations showing an office in this state, indicating at least a continuous business, and allegations denoting there were departments of that business in at least two cities of this state. In Emmerich Co. v. Sloane, supra, the extent or character of the business was not up for consideration. In that case the plaintiff had made an attempt to comply with section 15 of the corporation law, but the court held that its endeavor was ineffective.

It may appear upon the trial that a more extended business has been carried on than the complaint sets forth, but, so far as its allegations. disclose, the plaintiff is not barred from maintaining the action.

The interlocutory judgment should be affirmed, with costs and disbursements of this appeal, with leave to the defendant to plead over by paying such costs and disbursements and the costs of the court below. So ordered. All concur.

(111 App. Div. 465)

and 132 New York State Reporter

MCDONALD v. SUN PRINTING & PUBLISHING ASS'N. (Supreme Court, Appellate Division, Second Department. March 16, 1906.) 1. LIBEL-PUBLICATION LIBELOUS PER SE.

A newspaper publication, charging a student of and writer on criminology and kindred subjects, and a former employé in the government' service as specialist in education as a preventive of pauperism and crime, as a "humbug" and a "psuedo scientist" is libelous per se.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 4, 80-88.]

2. SAME COMPLAINT ALLEGATION OF SPECIAL DAMAGES-NECESSITY.

A complaint in libel which alleges a publication libelous per se need not allege special damages.

[Ed. Note.

§§ 213, 214.]

For cases in point, see vol. 32, Cent. Dig. Libel and Slander,

Appeal from Special Term, Kings County.

Action by Arthur McDonald against the Sun Printing & Publishing Association. From an interlocutory judgment sustaining a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, plaintiff appeals. Reversed.

See 92 N. Y. Supp. 37.

The action is for a libel in the publication by the defendant of the following:

"Congress and the Patho-Social Humbug.

"To the Editor of the New York Sun-Sir: I was very much pleased to see your vigorous and healthy editorial in the Sun of Feb. 18, exposing the pathosocial humbug and 'specialist in education,' Arthur MacDonald. There is indeed cause for wonderment that his filthy nonsense should have been tolerated for so long a period. As an apostle of Lombrosian doctrines he has the distinction of being, perhaps, both the shallowest and cheekiest American promulgator of the half truths and whole falsehoods, the fallacies and follies, of this Italian School of Degeneracy. 'Doctor' Arthur MacDonald is never so happy as when he can delve in the mire and mud of derelict humanity, but for the bystanders, this 'horrible example,' for one, is not a useful or instructive exhibit. That any committees of Congress should fail to appreciate the nauseous character of this individual's 'work' is to be deplored by decent people, and the writer sincerely hopes that the Sun will continue fearlessly to expose this persistent self-advertiser and psuedo-scientist. "New York, Feb. 19.

Anthropos."

Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ.

Wales F. Severance, for appellant.
Franklin Bartlett, for respondent.

JENKS, J. The plaintiff alleges that he was graduated from the University of Rochester and from the Union Theological Seminary, and that thereafter, in this country and in Europe, he was a university student of medical subjects, especially of a medico-legal and criminological nature; that he served the government at Washington as a clerk, under the title "Specialist in Education as a Preventive of Pauperism and Crime." He further alleges that he was widely and favorably known here, in Canada, and in Europe both as a student of criminology and a writer of various publications on that and kindred subjects.

He complains that the defendant had printed certain articles relating to his vocation, work, and writings, which were followed by the publication of the letter, upon which his action is brought.

The word "humbug" has become accepted as good English, and has an approved and well-understood meaning, as imposter; deceiver; cheat. Cent. Dict.; Worcester's Dict.; Standard Dict.; Stormonth's Dict.; Imperial Dict.; March's Thesaurus. Writers of pure and elegant English, like Lowell and Whipple, use it without the apology of quotation marks or of italics. In Nolte v. Herter, 65 Ill. App. 430, the appellant uses the word "humbug" in conversation, and the court say:

"Humbug is an imposition; imposture; deception; and as a verb signifies to impose upon; to cozen; to swindle-all implying intention to misrepresent by the assertion of what is not the actual condition, or the suppression or concealment of what is."

"Pseudo" is derived from the Greek "pseudein," to cheat; to deceive; and is defined as a "quasi prefix in compounds of Greek origin, meaning 'false'; 'counterfeit'; 'spurious'; 'sham.' It is freely used as an English prefix with words of any origin." Cent. Dict. Stormonth, a most accurate lexicographer, derives it from the Greek "pseudes,' lying; false; and defines it as "a word frequently prefixed to another, and meaning 'false, spurious.'"

I think that the letter brands the plaintiff as an imposter, and as a false or sham scientist, and that therefore it is a libel upon its face. In Smith v. Stewart, 41 Minn. 7, 42 N. W. 595, the words held libelous per se were "irresponsible, unadulterated, first-class humbug and fraud." In Meas v. Johnson, 185 Pa. 12, 39 Atl. 562, the words were, "You are a first-class fraud, and of the first water." In Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212, the term was "liar, scoundrel, cheat, and swindler." The books contain many other cases where equipollent words were pronounced libelous per se. I think it clear that the letter passed beyond any legitimate criticism of the work of the plaintiff to stamp him personally as an imposter, and that it cannot be held, as a matter of law, that the plaintiff pleads no cause of action therefor. Triggs v. Sun Printing & Pub. Ass'n, 179 N. Y. 144, 154, 71 N. E. 739, 66 L. R. A. 612, 103 Am. St. Rep. 841; Whistler v. Ruskin, cited in Odgers on Libel and Slander (page 35). The words "had a tendency to hurt, or are calculated to prejudice the plaintiff in his calling," and are actionable per se. Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810.

In the view I take of this demurrer, it is not necessary to pass upon the point whether special damages are well pleaded, for the plaintiff was not bound to plead them at all. Moore v. Francis, 121 N. Y. 204, 23 N. E. 1128, 8 L. R. A. 214, 18 Am. St. Rep. 810; Baylies, Code Pleading, 240, and authorities cited. When pleaded, it seems that the rule is the same as in an action for slander. Newell on Libel and Slander, p. 865.

The interlocutory judgment is reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to plead over within 20 days. All concur.

(111 App. Div. 467)

and 132 New York State Reporter

MCDONALD v. SUN PRINTING & PUBLISHING ASS’N. (Supreme Court, Appellate Division, Second Department. March 16, 1906.) LIBEL-PUBLICATION LIBELOUS PER SE-IMPROPER CRITICISM.

A newspaper publication, alleging that a student of and writer on criminology and kindred subjects, and a former employé of the government as specialist in education as a preventive of pauperism and crime, entrapped females into disclosing their delicate confidences, and publishing and selling the same, and imputing to him, in reviewing the publication by him of the results of his work, indecent and lascivious conduct toward young girls under the cloak of professional investigation, is libelous per se, and is not within the purview of fair criticism.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 81, 84, 88, 145-147.]

Appeal from Special Term, Kings County.

Action by Arthur McDonald against the Sun Printing & Publishing Association. From an interlocutory judgment sustaining a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, plaintiff appeals. Reversed.

See 92 N. Y. Supp. 37.

The article complained of, as published by the defendant in its newspaper, reads:

"The Abnormal 'Doctor.'

"Ejected from the Bureau of Education, 'Doctor' Arthur McDonald, the patho-social investigator, is pestering Senators and Representatives with the request that he be enacted into the Department of Justice, and provided with a laboratory there for 'the study of the abnormal classes,' under the supervision of the Attorney General. How eagerly the Department of Justice yearns for the presence and assistance of this patho-social investigator of abnormal femininity may be inferred from a letter written last Saturday by Attorney General Knox to the Secretary of the Charity Organization Society of this City:

"'Department of Justice,

"Washington, D. C. Feb. 21, 1903. ""Sir: Replying to your letter of the 18th instant, in which you ask whether this Department has any connection with the bill now pending in Congress to establish a laboratory for the study of the criminal, pauper, and defective classes, I have to say that this department is not a party in any way to the proposed legislation. Respectfully, P. C. Knox,

"Attorney-General.''

"The Department of Justice repudiates 'Doctor' Arthur MacDonald, his abnormal laboratory bill, and the patho-social humbug. This is merely what might be expected of any administrative establishment where sanity and clean habits of thought prevail. That there should be need now of warning Congress against such a measure as Senate Bill 6,032 is a circumstance essentially grotesque to any one who knows the facts about 'Doctor' Mac Donald and his 'work.' Yet the bill has actually been reported by the Senate Committee on the Judiciary, and is now on the calendar; and it is only about three weeks since the chairman of that committee, the venerable Senator from Massachusetts, in asking for its immediate consideration and passage, referred to this 'Doctor' MacDonald as 'the very earnest and devoted gentleman who has been engaged in that work formerly in the Bureau of Education.' We have already inspected some characteristic specimens of 'Doctor' MacDonald's methods of study. We have seen how he carried his enthusiasm for the investigation of abnormal femininity to the extent of entrapping young girls and foolish married women by means of a personal advertisement, leading them on to the disclosure of their most intimate affairs of the heart

or of sexual propensity, sometimes by letter to him, and sometimes at a personal interview which he arranged, and then publishing their confidences in a book advertised by him for sale at fifty cents a copy through a lock box in the Washington Post Office. Any Senator or Representative who wants to know just what sort of a person this 'very earnest and devoted gentleman' really is, and how far the impulse of his pursuits is genuinely scientific, may procure from the library of Congress 'Doctor' MacDonald's notorious treatise on Girls Who Answer Personals.' Since then the 'Doctor' (he is not a doctor of medicine, of law, of philosophy, or of divinity) has turned himself loose upon the helpless schoolboys and schoolmaidens of the Washington Public Schools. He has measured and tested the boys and girls to the extent to which he was permitted to go. His professed purpose was to obtain with his tape or his testing machines data for scientific generalizations concerning the relations between the physical conformation and moral or intellectual character. He has published statistics and conclusions. The conclusions are the laughing stock of competent scientific authority, but the statistics do really suggest thought, in one particular at least. For example, after consulting 'Doctor' McDonald's 'Girls Who Answer Personals,' let the congressman who desires to vote intelligently and properly on Senate Bill 6,032 procure a copy of his 'Experimental Study of Children, Including Anthropometrical and Psycho-Physical Measurement of Washington School Children.' This was published at the expense of the government as a public document. Amid its worthless conclusions and heterogeneous statistics, the one fact that stands forth conspicuously is the propensity of the 'Doctor' to exercise his anthropometric energy and psycho-physical curiosity upon girls rather than boys, and especially upon girls of sixteen or over, rather than upon boys of sixteen or over. In a partly similar investigation conducted several years ago by a real doctor of medicine (Dr. H. P. Bowditch) for the Boston Board of Health, the number of children measured and examined was 24,626, of whom 13,722 were boys, while only 10.904 were girls. 'Doctor' McDonald was more interested in the cases of the Girls than in the cases of the Boys, in the proportion of 8,520 girls to 7,953 boys; and the increase of his interest as the age of the girls increased in shown very significantly and somewhat unpleasantly in these tables, summarizing the results of his activity in the matter of 'psycho-physical' measurements:

The table we print next is our own, and not 'Doctor' McDonald's although its figures are derived from his:

"We observe that the text of the bill which this indefatigable measurer wants Congress to pass in the interest of 'patho-social science' provides expressly that he shall continue his investigation in 'hospitals and schools': his alleged purpose being that 'the causes of social evils shall be sought out with a view to lessening or preventing them.' Look sharp after the 'Doctor' McDonald bill until the very end of the session."