Opinion
Argued April 3, 1939
Decided May 23, 1939
Appeal from the Supreme Court, Appellate Division, First Department.
Paul A. Berlowitz for appellants. Stuart N. Updike and James W. Rodgers for respondents.
This is an action for libel and for loss of services based upon an article published by the defendants concerning one Katherine Spector. Suit was instituted by Katherine Spector and by her mother, Sarah Spector, who sought damages for the loss of her daughter's services and society from the time of publication until the daughter reached her majority. Defendants' motion to dismiss the amended complaint for insufficiency was granted at Special Term and the order of dismissal was affirmed by the Appellate Division, first department, with one justice dissenting, and the following questions have been certified:
"1. Does the amended complaint in the above-entitled action state facts sufficient to constitute a cause of action on behalf of plaintiff, Katherine Spector, against defendant, News Syndicate Co., Inc., a corporation trading as `Daily News?'
"2. Does the amended complaint in the above-entitled action state facts sufficient to constitute a cause of action on behalf of plaintiff, Katherine Spector, against defendant, Ed. Sullivan?
"3. Does the amended complaint in the above-entitled action state facts sufficient to constitute a cause of action on behalf of plaintiff, Sarah Spector, against defendant, News Syndicate Co., Inc., a corporation trading as `Daily News?'
"4. Does the amended complaint in the above-entitled action state facts sufficient to constitute a cause of action on behalf of plaintiff, Sarah Spector, against defendant, Ed. Sullivan?"
Katherine Spector, a young, unmarried woman, was a dancer who entered a beauty contest in 1933 at Bayonne, N.J., and won the contest. Thereafter the defendant News Syndicate Co., Inc., publishers of the Daily News, a newspaper having a wide circulation throughout New York and New Jersey, published in that paper the following article written by the defendant Ed. Sullivan:
"BROADWAY
by
"ED. SULLIVAN
BEAUTY CONTEST
"Too often, beauty contest and bathing beauty pageants bring about situations that are unpleasant. City editors, for instance, might look into the aftermath of the recent Queen Esther contest, in which nineteen-year-old Katherine Spector was adjudged most beautiful of the Jewish girls of the country.
"What hasn't been brought out is that Katherine Spector was married secretly in August, 1931, at Newark, to William Shemin, young Bayonne, N.J., attorney. They were completely happy until the Queen Esther contest. Shemin was delighted, as any youngster might be. He okayed a fat Hollywood contract for his bride.
"On Saturday night, Katherine Spector leaves `Music in the Air.' Not to accept the Hollywood contract, but to leave her young husband for the long trip to Palestine. The Shemins, in other words, have Called it a Day."
We reach the conclusion that the article is libelous per se. (Cf. Sydney v. Macfadden Newspaper Pub. Corp., 242 N.Y. 208.)
The orders appealed from should be reversed, with costs in all courts, and the motion denied, with ten dollars costs.
All questions certified are answered in the affirmative.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Ordered accordingly.