May 2, 1925.
Hudson Hyland, for the plaintiff.
A.J. F.A. Parker, for the defendant.
To determine whether or not a publication is libelous per se it seems that the surrounding circumstances must be taken into account, though not the innuendoes advanced by the pleadings. (36 C.J. 1151; 17 R.C.L. 265.)
Thus an averment as inducement and colloquium must be considered for they relate to the substance and not to the application of the charge. ( Riley v. Gordon, 192 A.D. 443; Van Heusen v. Argenteau, 194 N.Y. 309; Feely v. Vitagraph Co., 184 A.D. 527; Rules Civ. Prac. rule 96.)
While the use the court makes of the term in Brown v. Tregoe ( 236 N.Y. 497, 502) and Davis v. Kelly ( 172 A.D. 171, 172) suggests that the innuendoes may be consulted in arriving at a conclusion as to whether or not a writing is libelous per se, the general rule seems to be that a libel depending upon an innuendo is not per se but per quod, and is only actionable for such special damages as are directly and proximately caused by it. And these damages must be alleged in the complaint with sufficient particularity to enable defendant to meet the charge. In this respect such actions are unlike those in which the defendant's remedy is for a bill of particulars if the damages are not alleged with sufficient definiteness. ( Philipp Co. v. New Yorker Staats-Zeitung, 165 A.D. 377, 390.)
Without the facts alleged as inducement in the complaint, the publication in suit here imputes nothing derogatory to plaintiff's reputation or character; but taken with them, the letter clearly charges him with conduct affecting his standing, honesty and reliability in his business, and tending to "injure his character in the opinion of others" as an individual. ( Cohen v. New York Times Co., 153 A.D. 242; Mase v. Reilly, 206 id. 434.)
This case is not unlike that of Riley v. Gordon ( supra), in which the court says, Mr. Justice BLACKMAR writing: "These words upon their face are not slanderous. They do not charge plaintiff with the commission of a crime, nor with having a loathsome disease, nor do they injure him in his business. But the question always is directed to the meaning which the words conveyed to those in whose presence and hearing they were spoken; and matters of inducement may be alleged which give a defamatory meaning to words otherwise innocuous. * * * In the law of slander [libel], as well as in the law of contracts, matters known to all the parties give a meaning to spoken words." ( Knickerbocker v. Press Publishing Co., 176 N.Y.S. 343; affd., 192 A.D. 945. )
Motion denied, with costs, with leave to defendant to answer in ten days on payment of costs before notice of trial and motion costs. ( Taishoff v. Elkema, 171 A.D. 288, 295.)