Opinion
March 12, 1937.
Appeal from Supreme Court of Bronx County.
Harold L. Winston [ Harold L. Winston, attorney for Dudley H. Smith, Samuel Levinson, attorney for Dr. Walter D. Smith], for the appellants.
Martin A. Meyer, Jr., of counsel [ Ralph G. Albrecht with him on the brief; Peaslee Brigham, attorneys], for the respondent.
The "first," "third," "seventh" and "eighth" causes of action should be dismissed because the alleged defamatory matters set forth therein are not libelous per se.
As the language of the alleged libelous matter in each of the remaining causes of action is susceptible of an innocent as well as of a disgraceful meaning, the question becomes one of fact for a jury to decide. ( Demos v. N.Y.E.J. Publishing Co., 210 N.Y. 13; Briarcliff L. Hotel v. C.-S. Publishers, 260 id. 106, 118; Zbyszko v. N.Y. American, Inc., 228 App. Div. 277, 279.)
The order should be modified by dismissing the "first," "third," "seventh" and "eighth" causes of action and as so modified, affirmed, without costs.
MARTIN, P.J., McAVOY, O'MALLEY and COHN, JJ., concur; DORE, J., dissents in part.
The allegations of the complaint are limited by the allegedly libelous article when it is made part of the complaint and the innuendo may not enlarge the meaning of the words alleged to be libelous per se. ( Hays v. American Defense Society, 252 N.Y. 266.) In view of the fact that the letters annexed as exhibits to the causes of action other than the fourth do not connect the defendant Dr. Walter D. Smith with such other causes of action, the entire complaint except the fourth cause of action should be dismissed as to the defendant Dr. Walter D. Smith, and for analogous reasons the fourth cause of action should be dismissed as to the defendant Dudley H. Smith. Except as stated, I otherwise entirely concur in the per curiam opinion herein.
Order, so far as appealed from, modified by dismissing the "first," "third," "seventh" and "eighth" causes of action and as so modified affirmed, without costs.