it must also apply to many other persons in the various departments of the city government; and the statute contains a number of provisions and expressions which are wholly inapplicable to public officers or clerks.

Among such provisions and expressions are those which refer to the "regular place of labor of the employee," and "the wages earned by him;" the provision forbidding the assignment of the future wages of an "employee" to the corporation from whom such wages are to become due; also the provision authorizing the factory inspectors of the state to maintain actions to recover the penalties imposed by the act for a non-compliance with its provisions.

The officers and clerks of the municipality cannot in any proper sense be said to have "a regular place of labor;" they perform their respective duties in offices contained in various public buildings.

Again, "wages earned" is an apt expression in regard to laborers who are only entitled to pay for services actually rendered, but is entirely inappropriate when used concerning public officers or clerks who receive annual salaries, which are not due until the expiration of the year, and are entitled to be paid so long as they hold their offices, or places, without regard

to the services rendered.

Moreover, an "employee" has a legal right to assign his future wages, but a public officer cannot lawfully assign his future "salary." Bliss y. Lawrence, 58 N. Y., 442. Section 2 of the statute assumes that "wages" of "employes" are legally assignable, but makes the assignment invalid if made to the corporation, or anyone acting in its behalf. The legislature must be presumed to have known that the court of last resort in this state had decided that a public officer could not assign his future "salary," and certainly would not have inserted such a provision if it had been intended that the word "employee" should include public officers.

The provision that the penalties imposed by the act shall be sued for by the factory inspectors is strong evidence that neither officers nor clerks are within the purview of the statute. It is the duty of the factory inspectors to look after the interests of operatives in factories. It is not to be supposed that the legislature would have devolved upon these officers the duty of protecting the interests of the officers and clerks of all the cities in this state.

Again, in the act (chap. 410 of the Laws of 1882), which was a consolidation of the statutes relating to the city of New York, the same distinction between "salaries" and "wages" is frequently made; and it is provided that some salaries shall be paid monthly, some quarterly, and that in all other cases the comptroller of the city shall prescribe the manner in which salaries shall be drawn.

These provisions of law have not been expressly repealed by the legislature, and local and special laws are not repealed by a general law unless the intent to repeal is entirely clear. In the

Matter of Evergreens, 47 N. Y., 216; In the Matter of Central Park, 50il, 493; People v. Quigg, 59 id., 83; People v. Supervisors, 73 id., 176; McKenna v. Edmundstone, 91 id., 231; Mangam v. Brooklyn, 98 id, 585; Weiler v. Nembach, 114 id., 39; 22 N.Y. State Rep., 171. If the legislature in passing the weekly payment law had intended to repeal all such provisions of the consolidation act, and to provide that the salaries of the officers and clerks of this city should be paid weekly, it would not have merely spoken of the " wages of employees," but it would at least have done as all previous legislatures have done, when enacting laws relating to the compensation of officers and clerks, and have used the word "salary' as well as "wages," and the words "officers" and "clerks " as well as "employees."

Lastly, without attempting to express any opinion as to whether the legislature ought to pass a law providing for the weekly payment of such salaries, it is very obvious that there are many reasons why laborers, and others, receiving wages, as that term is ordinarily understood, from private and municipal corporations, ought to be paid weekly, which do not apply to the officers and clerks of such corporations, who receive annual salaries.

The application for a mandamus will be denied, but without

costs.

RICHARD FLATOW, Pl'ff, v. THEODOR VON BREMSEN, Def't. (City Court of New York, Special Term, Filed September 6, 1890.) SLANDER-PLEADING.

A complaint in an action for slander in speaking words not actionable per se which alleges that by reason of the speaking of said words divers persons have refused to associate or transact business with plaintiff, and that plaintiff was thereby deprived of the benefits which would accrue to him from such association and business to an amount specified, states a sufficient cause of action.

DEMURRER to the complaint.

Foster & Stephens, for def't and demurrer; Howe & Hummel, for pl'ff, opposed.

GIEGERICH, J.-The words spoken by the defendant not being actionable of themselves, the plaintiff, in order to maintain the two causes of action set forth in the complaint, served an amended complaint, whereby he alleges special damage resulting from the utterance of the words set forth under each cause of action, in words substantially as follows: "That by reason of the speaking an uttering of the said words, as aforesaid, by the defendant, divers persons have refused to associate or transact any business with this plaintiff, and this plaintiff was thereby deprived of the benefits which would accrue to him from such association and business as aforesaid, to his damage in the sum of $1,000.

The defendant contends that the amended complaint, even with the allegations of special damage added to each cause of action, does not state facts sufficient to constitute a cause of action. "As to what constitutes special damages, Starkie mentions the loss of a marriage, loss of hospitable gratuitous entertainment, preventing

a servant or bailiff from getting a place, the loss of customers by a tradesman; and says that, in general, whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient. Stark. on Sland., 195, 202; Cook's Law of Def., 22-24. In Olmsted v. Miller, 1 Wend., 506, it was held that the refusal of civil entertainment at a public house was sufficient special damage.

So, in Williams v. Hill, 19 Wend., 305, was the fact that the plaintiff was turned away from the house of her uncle and charged not to return until she had cleared up her character. So, in Beach v. Ranney, was the circumstance that persons, who had been in the habit of doing so, refused longer to provide fuel, clothing, etc. 2 Stark. on Ev., 872, 873. These instances are sufficient to illustrate the kind of special damage that must result from defamatory words, not otherwise actionable, to make them so; they are damages produced by or through impairing the reputation.' Terwilliger v. Wand, 17 N. Y., 54, 59, 60. Per Strong, J.

Substantially the same principle here involved was presented in Hewit v. Mason, 21 How. Pr., 366, 368, wherein the complaint stated that, by reason of the speaking of the words, the plaintiff was injured in his good name and business and excluded from the society of his friends and neighbors to his damage of $2,000, and it was held that the injury to his business and exclusion from society are damages of a special character; that perhaps the plaintiff should have been more specific, certainly he should as to the charge in regard to the injury to his business; but that this objection could not be raised on demurrer, and that the remedy of the defendant was by motion under the Code to make the complaint more definite and certain.

In the light of these rules and the rule by which, under the Code, the sufficiency of a complaint is to be determined, and well stated by Andrews J., in Marie v. Garrison, 83 N. Y., 14, 23, as follows: "A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient that the facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred; there can be no other conclusion arrived at than that the complaint, while it should be more specific, nevertheless sets forth two sufficient causes of action. Judgment must be ordered for the plaintiff on the demurrer, with costs, with leave to the defendant to serve an answer within five days, upon payment of the costs, overruling the demurrer.

RICHARD FLATOW, Pl'ff, v. THEODOR VON BREMSEN, Def't.

(City Court of New York, Special Term, Filed September 6, 1890.) ARREST WHEN AMENDED COMPLAINT CANNOT BE. RESORTED TO TO UPHOLD ORDER OF.

Where the papers upon which an order of arrest was granted failed to set forth any cause of action, an amended complaint served after the arrest was made cannot be resorted to to uphold the order.

MOTION by defendant to vacate an order of arrest, on the papers upon which it was granted, on the ground that the complaint failed to set forth a sufficient cause of action.

The action was brought by the plaintiff to recover $2,000 damages alleged to have been sustained by reason of the utterance of certain words, which, upon demurrer to the amended complaint, have, in an opinion filed this day, been held not to be actionable of themselves. After the service of the complaint, which was made at the time of the arrest of the defendant, the plaintiff, without leave of court obtained therefor, served an amended complaint, whereby special damages are alleged to have been sustained by reason of the utterance of the words set forth. The defendant contends that the amended complaint cannot be considered on this motion.

The other facts are stated in the opinion.

Foster & Stephens, for def't and motion; Howe & Hummel, for pliff, opposed.

GIEGERICH, J.-The only substantial question to be determined upon this motion to vacate the order of arrest is, whether the amended complaint, which was served after service of the notice. of motion to vacate the order of arrest, should be resorted to to uphold the order of arrest herein.

On the 31st day of July, 1890, the defendant was arrested by virtue of an order of arrest granted herein on the 28th day of July, 1890, upon the affidavits of the plaintiff, Caroline Roth Rowsky and John Grolmund, and upon the summons and complaint accompanying the same, and at the time of his arrest he was served with a copy of the order of arrest, and of the papers above mentioned. Thereafter, and on August 1, 1890, the defendant served a notice of motion returnable on the 5th day of August, 1890, at 10 A. M., to vacate the order of arrest on the ground that the complaint fails to state facts sufficient to constitute a cause of action. On the 5th day of August, 1890, and before the hearing of the motion above referred to, an amended complaint was served upon the attorney for the defendant herein.

The original complaint failed to allege special damage by reason of the utterance of the words spoken by the defendant, which are not actionable of themselves; but the amended complaint alleges special damage, not specifically, yet sufficiently to sustain the complaint on demurrer, as will be seen on reference to the opinion filed this day respecting the demurrer to the amended complaint herein..

Section 558 of the Code of Civil Procedure, as amended, provides: "But at any time after the filing or service of the complaint, the order of arrest must be vacated on motion if the complaint fails to set forth a sufficient cause of action as required by section 549 of this act."

The original complaint, served with the order of arrest, and the affidavits upon which the order of arrest was granted, fail to set forth any cause of action whatever in favor of the plaintiff against N. Y. STATE REP., VOL. XXXIII. 4

the defendant, and, in my opinion, the amended complaint should not be considered on this motion, and should not be resorted to to uphold the order of arrest.

In Southern, etc., Navigation, etc., v. Sherwin, 1 Civ. Pro., 44, the complaint which accompanied the order of arrest failed to set forth a cause of action. The defendant demurred to the complaint, and moved to vacate the order of arrest on the papers on which it was granted, on the ground that the complaint failed to set forth a suflicient cause of action. Thereafter, and within the proper time, the plaintiff served upon the attorneys for the defendant an amended complaint, supplying certain omissions, and, for the purpose of sustaining the order of arrest, obtained an order to show cause why the original complaint should not be declared amended nunc pro tunc, as of the date of its service upon the defendant, and his arrest, and Lawrence, J., in denying the motion, and in vacating the order of arrest, among other things, well says:

"The complaint which was served upon the defendant with the summons and affidavits fails to set forth any cause of action whatever in favor of the plaintiff against the defendant. It therefore follows that this motion must be granted unless the amended complaint which has been served on the part of the plaintiff can be resorted to to uphold the order of arrest, by granting the plaintiff's motion that such complaint be declared amended nunc pro tune as of the date of the service of the original complaint. Sce Hecht v. Levy, 20 Hun, 53; Easton v. Cassidy, 21 id., 460. I am of the opinion that the motion of the plaintiff should not be granted for the purpose of upholding the order of arrest. The issuing of an order of arrest is not a matter of course, and it is the duty of the plaintiff who invokes the aid of the court in obtaining such an order to see that he has complied with all the requirements of the law applicable thereto. The liberty of the citizen is of quite as much importance as the preservation or security of his property. If the provisions of the Code are to be strictly construed in cases of attachment, the same rule of construction should be applied to the provisions which relate to the obtaining of orders of arrest. Again, this motion is made under § 568, on the plaintiff's own papers, and must be heard, as that section declares, upon these papers only. To allow the plaintiff to introduce an amended complaint on this motion would be allowing him to refer to other papers than those on which the order was granted and in violation of that section."

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I fully concur in the views of Mr. Justice Lawrence as above stated. Since the publication of the decision in the foregoing case, a number of cases have been decided which seem to hold that an amendment of the complaint will be allowed, after service thereof, in order to sustain the order of arrest. See McBride v. Langan, two cases, Supreme Court Chambers, Barrett, J., N. Y. Law Journal, April 15, 1890; Hanson v. Langan, 30 N. Y. State Rep., 828. Upon perusal of these cases, it will be found that while the cause of action was imperfectly set forth in the coinplaint, and in the affidavits upon which the order of arrest was granted, they, however, contained sufficient averments to confer