104 N.Y.S. 202 | N.Y. App. Div. | 1907
Lead Opinion
This is an action for libel. The ground of the demurrer is that the facts alleged do not constitute a cause of action. No special damages are alleged. The question, presented by the demurrer is whether the article alleged to have been published of and concerning the plaintiff is libelous per se. The plaintiff alleges that it is a domestic corporation lawfully engaged in conducting in the city of New York a reporting agency “ for the purpose of giving information to its subscribers relative to persons, corporations and firms, their business standing and reputation ” and “ has established for itself a high reputation among the business community for the accuracy, integrity and trustworthiness of its reports, and has enjoyed a good name, fame and reputation among its. customers and the business community in general, and that as a result thereof ” its business has been profitable.
The defendant corporation was the publisher of “ Everybody’s Magazine,” in which the alleged libelous. article was published; and the defendant Bidgway was its president, having charge of the
■ “One of Miner’s most intimate friends and active lieutenants is Henry -Burton King, founder of, the New York Bureau of'Information, now managed by his brother J. D. W. King. King is a tout,. sleeli enough in his methods to have corralled bankers and brokers -of unimpeachable legitimacy as clients for the' New York Bureau of Information. His portrait, until it was surreptitiously removed, was Ho, 295-G in the Chicago Rogues’ Gallery, and' he has the distinction of having served a penal sentence for the larceny of goods from such masters of merchantry as Lévi Z. Leiter and Marshall Field.” . . '
The sufficiency of the. complaint 'does not depend wholly upon the article as published. . The plaintiff alleges, by way of innuendo, that the defendant meant by said article and intended to convey the belief to its readers and to the public in general that the plaintiff’s business-was managed by persons of notoriously bad character; • that it was conducting an unlawful and illegitimate business; that it . was organized to promote improper schemes and undertakings; that it is and lias been conducted in the interest of persons seeking to defraud the public bymeans of gambling on horse faces and the fluctuations of the stock market; that J. D. W, King, president of. the plaintiff, is a tout, and a procurer. for gambling houses, and adopted improper and unlawful methods in soliciting business for the plaintiff; that the. plaintiff’s president had been guilty of the crime of larceny, had served a penal sentence'therefor, and. used improper and unlawful nieans in procuring the-removal of his picture from tiie Chicago Rogues’ Gallery. The; falsity of the article and the, maliciousness of the publication are alleged ; and injury, to the plaintiff in its reputation by a loss of public confidence which if theretofore enjoyed with resulting financial loss and injury to .its. business are likewise alleged.
The ’.article ‘ is. not susceptible of every meaning, ascribed to it in the innuendoes. It-may be that the charges that King is a' tout and with respect to. his having corralled clients for the. plaintiff , and with
It . follows that the interlocutory judgment should be affirmed,, with costs.
Patterson, P. J., and Clarke, J., concurred; Ingraham and Scott, JJ., dissented. ■ •
Dissenting Opinion
(dissenting):
The plaintiff, a domestic corporation, seeks to recover damages for an alleged libel, and the. question presented by this demurrer is whether the article published was a libel per se, so that the action can be maintained without an allegation of special damages. The plaintiff “ conducts” a general reporting agency in the city of New York for the purpose of giving, information to its subscribers relative to corporations and firms, their business standing and reputation. The alleged libel was published in a monthly publication known as “ Everybody’s Magazine,” and was a part of an article entitled “ Bucket Shop Sharks.” The statement complained of is that “ One of Miner’s most intimate friends and active lieutenants is Henry Burton King, founder of the New York Bureau of Information, now managed by his brother J. D. W. King. King is a tout, sleek enough in his methods to have corralled bankers and brokers'of unimpeachable legitimacy as clients for the New York Bureau of Information. His portrait, until it was surreptitiously removed, was Ho. 295-G- in the Chicago Bogues’ Gallery, and he has the distinction of having served a penal sentence for the larceny of goods from such inasters of merchantry as Levi Z. Leiter. and Marshall Field.”
This article would be libelous per se as to Henry Burton King, but it is a corporation conducting a general reporting agency referred* to as having been founded by King that seeks to recover. For a publication to be libelous per se as to a corporation the language used concerning it must be such as “injuriously and directly affects its credit and necessarily and directly occasions pecuniary injury.” (Union Associated Press v. Heath, 49 App. Div. 247; cited with approval in Reporters' Assn. v. Sun Printing & Publishing Assn., 186 N. Y. 437.) In the latter case the court said that “ a corporation has the right to maintain an action of libel when the publication assails its management, or credit, and inflicts injury upon its business, or property, is a proposition which is true upon principle and which has the support of authority, * *' * ' It is, as much entitled to the protection of the law in those respects as is the natural person. It differs, from the latter in that it has no character to be affected by a libel, but its right to be protected against false and malicious statements affecting its credit or property should be beyond
The statements in'the published article relate to Henry Burton King. Nothing is alléged as against the integrity or business methods of the plaintiff, and nothing reflecting upon its solvency or which would affect its credit; King is spoken of as being a. man who founded the corporation and who has been succeeded in its management by his brother, against whom nothing is said. The fact that King had been its founder and had obtained clients for it cannot be said to affect the present credit of the corporation or its present management. King is said to be a “ tout,”, which, when used in this connection, would seem to mean a person who solicits customers, employment or the like (Century Diet.), and that he was “sleek'enough in his methods to have corralled bankers and brokers of unimpeachable, legitimacy as clients for the New York Bureau of Information.”- I cannot see that there is anything in this statement that could possibly reflect in any way upon the character of the plaintiff, its business methods or credit, or that could legitimately induce any one to view it with suspicion. King is not alleged to have any present connection with the corporation, nor is it alleged that any of the “ bankers and brokers of unimpeachable legitimacy” ever regretted in any way their connection with the plaintiff. ' The word “ corralled ” seems to have been used as synonymous with “induce” or “persuade,” and does not imply improper or fraudulent methods.
It certainly would not be a libel per se as against the corporation to assert that a former ofiicer who had advanced the interests of the corporation was a dishonest man,.and yet this is all that this publication states as relating to this plaintiff. If, as the plaintiff’s counsel claimed on the argument, this publication had in fact affected its customers and prevented it from obtaining other customers in the
It follows that the judgment appealed from should be. reversed, With costs,, and the demurrer sustained^ with Costs, with leave to the plaintiff to amend upon payment of costs in this court and in the court below.
Scott, J., concurred. ■
Judgment affirmed, with costs, with leave to. defendants to With-draw demurrer and to answer on payment of costs in this court and in the court below. ■ ' -.-