117 N.Y.S. 779 | N.Y. App. Div. | 1909
No appeal lies from a decision of the court. The remedy of the defeated party is to appeal from the judgment entered, upon the decision.
“Great Mames Forged in ‘Fads and Fancies.”
“Facsimile Signatures of President Roosevelt, Grover •' Cleveland, and Bishop. ' Potter Employed;
“ All Have Denied Any 'Connection With Book. .
“ Col. Mann declines to riiaké ' ’ any explanation of mat- . . ter to reporters.
“When Col. Mann, the publisher of Fads and Fancies, sent out ■solicitors to obtain' subscribers at $1,500 upward, he had decided that the book, should contain portraits' of and reading matter about •three distinguished men' who were not to be. treated as ‘ coons,’ and the following were not asked to pay:
“ President Theodore Roosevelt.
“ Ex-President Grover Cleveland.
“ Bishop Henry Oodman Potter.
“A-part of the original scheme was'that each .subscriber should - sign his name in each of about one hundred copies. That .plan was given up for various reasons.
“ The book as it is now being distributed to subscribers has an index, not alphabetical, 'giving, the name of each -person .whose fads and fancies are the subject of 'an article,and opposite his name is a fac-simile of his signature.
“ The obvious purpose is to' make it appear -that the signatures stand for the subscribers’ satisfaction with the sketches and for a' testimony that each signer is a bona fide paid up member Of this syndicate , of elegant publicity. ‘ '
*31 “ In this table of contents appear fac-similes of the signatures of President Roosevelt, Mr. Cleveland and Bishop Potter.”
The learned counsel for the respondent contends at the outset that the demurrer was properly overruled under the rule that a demurrer searches the record and that the complaint fails to state facts sufficient to constitute a cause of action. We are of opinion that this objection is not well taken. The claim made in behalf of the respondent is that the complaint fails to show that the article ptiblished charges the plaintiff with the crime of forgery; and in support of that contention it is argued that the forgery charged may have been committed by the board of directors or some officer of the Town Topics Publishing Company, which, it is alleged in the complaint, was the publisher of “ Fads and Fancies of Representative Americans,” concerning which the alleged libelous article was published. The difficulty with that contention is that the alleged libelous article charges the fact to be that the plaintiff was “ the publisher of Fads and Fancies” and it does not in any manner connect the Town Topics Publishing Company therewith. The headlines of the article published charge that great names wero forged in the publication known as Fads and Females, and since it charges that the' plaintiff was the publisher of Fads and Fancies, the inference would be drawn by a reader of average intelligence that the plaintiff either forged the names or aided and abetted in forging the same and was, therefore, guilty of the crime of forgery.
The demurrer is upon the ground that the defense to which it relates is insufficient in law upon the face thereof. This defense is pleaded as a “Second, further and separate- defense, and as an absolute defense, and in justification of the alleged libels set forth in the complaint.” The defense then alleges that the alleged libels set forth in the complaint “ were and are true, and alleges upon information and belief that it was and is true, as follows,” and then a long statement of facts is set forth, many of which are not directly connected with the alleged libelous article and have no direct bearing thereon. It is thus seen that the matter is not pleaded in mitigation, but as a complete justification. The sufficiency of the defense, therefore, is to be tested by the rigorous rule that the justification must be as broad as the charge. If this defense rested with the allegation that the alleged libels were true, it would, of course, withstand the
It is quite clear, we think, that the justification is not as broad as the charge. Moreover, we are of ■ opinion that if the allegations of this defense are susceptible of the construction, which we think they are not, that they connect the plaintiff with all of the things therein alleged to have been done with respect to the publication of Fads and Fancies, either as a principal or as an accessory, still, the crime of forgery as charged in the alleged libelous article is not shown to have been committed, nor is any crime of forgery shown to have been committed. It is manifest that the alleged libelous article charges particularly the crime of forging names or signatures, which would be forgery in the second degree, as defined in subdivision 2 of section 511 of the Penal Code, in that the names or signatures were forged in the index to the article with the intent to defraud others by inducing them to subscribe and pay subscriptions for Fads a/nd Fancies. Ro name or signature was forged. Certain autograph signatures were obtained, according to the allegations in this defense, and used without authority; but they were genuine signatures. Ror would it avail the defendant if the alleged libelous article could be construed as charging the crime of forgery in the third degree, which is defined in subdivision 3 of section 514 of the Penal Code, as follows: “ A person * * * 3. Who shall alter, or who shall cause, aid, abet, or otherwise connive at, or be a party to the
Assuming, without deciding,, that the allegations of the defense in question are such as connect the plaintiff, either as principal or ás accessory, with all the facts therein charged, then -the forgery, in the most favorable view, to be taken of the facts for the defendant, would consist in “ uttering”, the publication known as Fads and Fancies, containing an index‘purporting to have been signed by the individuals named, whose signatures were used without authority, knowing that the same was false in that the index was not signed by them; for on that view of the case there is no allegation in this defense to the effect that the sentiments, opinions, conduct, character, prospects, interests or rights of individuals named were either “misrepresented or otherwise injuriously affected.” The mere fact that they did not sign the index, and that their signatures therein were used without their authority, do not show that their sentiments have been misrepresented or injuriously affected. Upon no-" theory, therefore, is the defense, as pleaded, a complete justification. •
It follows that the appeal from the decision should be dismissed and that the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, but with leave .to the defendant to amend its answer upon payment of the costs of this appeal and of the demurrer.
Ingraham, McLaughlin, Clarke and Scott, J.J., concurred.
Appeal from decision dismissed. Judgment reversed, with costs,. ■ and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.