97 N.Y.S. 694 | N.Y. App. Div. | 1906
To me it seems an absurd supposition that the article justifies the innuendo that it charged membership in the band known as the Black Hand.. Any faii*-minded man—any man of ordinary ability and intelligence, reading the entire print -— could not so construe it. He who runs would read it as the story of a practical joke based on a physical pun — the- existence of a “ black hand ” on the plaintiff’s back — and published to provoke laughter.
My reading of the opinion in Morrison v. Smith (177 N. Y. 366) and the opinion therein referred, to, read by Laughlin, J., in the Appellate Division (Vol. 83, pp. 206, 209), is that the Court of Appeals decided that, although an .innuendo must fall, the complaint may survive if ' no innuendo was necessary to sustain a cause of action. We followed this rule in Wuest v. Brooklyn Citizen (102 App. Div. 480), and I shall abide by it.
I think .that the article is well within the woi’ds of Paxson, J., in Press Company v. Stewart (119 Penn. St. 584, 603): ££ The matter
I advise that the interlocutory judgment be reversed, with costs, . and the demurrer be sustained, with costs.
Hooker, Rich: and Miller, JJ., concurred.
Interlocutory . judgment reversed, with. costs, andr demurrer sustained, with costs. ,