87 N.Y.S. 859 | N.Y. App. Div. | 1904
The plaintiff has sued for damages on account of the alleged malicious publication in the defendant’s newspaper of the following article:
“ Savant cannot make a living. Old Oxford Professor and family in sad straits. That the battle for existence is not won by brains alone is illustrated in the sad plight of Prof. Alfred Nolan Martin, at Richmond Park, Staten Island. A man of extraordinary attainments in classical learning and once a professor in Oxford University, he is now in sad straits because his education hampers him in earning a living. He is living with his young wife and two small children in a house which has not a single door or' window inclosed. He.is too poor-to finish his dwelling and too proud to ask aid. His neighbors say he is starving. In his .life —he is now over fifty — Prof. Martin has been, besides an Oxford professor, a sanitary engineer, a lecturer, a social adjutator, a school teacher and an author, Seven years- ago, while with the Staten Island Health*533 Department, he married Miss Cooper, of Stapleton, a graduate of the New York University Law School. Then he lost his place.”
Upon the trial, before any evidence was taken, the defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This motion was granted, and. plaintiff appeals from the judgment entered thereon and from the order denying his motion for a new trial. In denying the motion.for a new trial the learned court below wrote an opinion in which he reached the conclusion that the published words were not susceptible of the particular meanings alleged in the complaint to be attributable to them, and held that, therefore, the complaint did not state a cause of action. (Martin v. Press Publishing. Co., 40 Misc. Rep. 524.) Since the writing of that opinion the Court of Appeals has decided the case of Morrison v. Smith (177 N. Y. 366), in which the recent cases in the Appellate Division, upon which the court below relied in his disposition of the motion (Brown v. Tribune Association, 74 App. Div. 359; Morse v. Press Pub. Co., 49 id. 375, and Morrison v. Smith, 83 id. 206), were distinctly overruled, and it is now the established law in this State, by reason of the recent utterance of the court of last resort, that where by innuendo or allegations of that nature the plaintiff has put meanings upon the alleged libelous publication unsupported by its language; the court may nevertheless, if the article is libelous per se, submit the case to the jury. The question, therefore, presented for our consideration is whether the article which we have quoted is libelous per se. If the question is answered in the affirmative, the judgment and order must be reversed, for the innuendos and allegations of the complaint as to the meaning to be attached to its phrases and sentences may be disregarded.
■ Somewhat more recent cases in the Court of Appeals upon the subject of what constitutes libel per se are Morey v. M. J. Association (123 N. Y. 207); Moore v. Francis (121 id. 199); and Shelby v. Sun Printing Association (38 Hun, 474; affd. on opinion below in 109 N. Y. 611). It is in those cases declared that if the tendency of a written or published article is to disgrace the plaintiff or bring him into ridicule or contempt, the matter is libelous per se. -The case of Cropp v. Tilney (3 Salk. 226) is cited twice with approval as holding that scandalous matter was not necessary
The judgment and order must be reversed.
All concurred, except Bartlett and Jenks, JJ., dissenting.
Judgment and order reversed and new trial grantéd, costs to abide the event.