Majority
p. 446BLAISDELL a. RAYMOND. Supreme Court, First District; Special Term, June, 1857.
Headnote
Libel.—Pules of Pleading.—Innuendoes.—Answee.Strictly the only object of the innuendo in a complaint for defamation is to explain the application of the words employed in the offensive publication by connecting them with the extrinsic circumstances set forth in the complaint by way of inducement.
The rule of the former practice which required the plaintiff in an action for defamation to state by way of inducement any extrinsic facts necessary to support an innuendo, is still in force, except as to such facts as are requisite to show the application of the words to the plaintiff.
It seems that where in a complaint for libel there is a defect in an innuendo, properly so called—such as that it is not supported by the prefatory extrinsic facts, or that it enlarges the meaning of the words charged, or alters them, or substitutes other words in their place,—the proper remedy is by motion.
But where passages in a complaint for libel, although in the form of innuendoes, were obviously not intended as such by the pleader, but were inserted as an allegation of the import of the words charged, they should not be stricken out on motion, but the defendant should answer them as averments of issuable facts.
Motion to strike out portions of a complaint.
p. 447
This action was brought by Alvah Blaisdell against Henry J. Eaymond and others, editor and proprietors of the Hew York Daily Times, to recover damages for libel.
The complaint set forth, by way of inducement, that on January 30, 1857, one Harvey Burdell was murdered at Ho. 31 Bond-street, in Hew York city;—that a coroner’s inquest was held, and the plaintiff subposnaed as a witness before the coroner’s jury;—that the jury found that the murder was committed by Emma A. Cunningham and John J. Eckel, who were thereafter indicted by the grand jury.
The complaint then averred in the usual form that the defendants published of and concerning the plaintiff an article, which was set out. The article was entitled:—“ The Burdell Murder—Remarks on the evidence and the present aspect of the case—and was in form a letter addressed to the editor of the Daily Times.
So much of the alleged article as is important in reference to the present motion, together with the innuendoes employed in the complaint, was as follows :—
“ For ourselves we doubt the propriety of so mighty a power as the press, or the public sentiment of the city of Hew York, deciding, or attempting to decide, without the legitimate proofs, the guilt or innocence of any person. Their mistakes, and the press is not perfect, are fearful and appalling to the unfortunate victims of its error. Hence, not to implicate, but to expose the feeble—we had almost said contemptible—evidence, contemptible in view of the high offices claimed of it, which yet remains as the fabric of guilt against Mrs. Cunningham and Eckel, let us look at the testimony and the position of one” (meaning the plaintiff) “ who has contributed at least his share of material to awaken suspicion against the occupants of the house Ho. 31 Bond-street. We repeat, we seek not to taint with crime any person. On the contrary, our object is to show how easy it is to cast suspicion on the innocent.
“ Dr. Blaisdell” (meaning the plaintiff) “ had held business relations for a long time with Dr. Burdell. He had been his partner. He had had access to the rooms of the deceased; and it is not unreasonable to suppose was necessarily familiar with the mode of ingress and egress, and might have the means, by keys or otherwise, of gaining admittance to them. There seem
p. 448
to have been important business or other intimate relations subsisting between Dr. Blaisdell and deceased, as the latter, he says, came quite frequently to see him.
“ Dr. Blaisdell informs us he had not for some time previous to the murder been a frequent visitor to the house of Dr. Bur-dell, yet on the afternoon preceding the murder he is shown to have been there on two occasions. We have not referred to the evidence since its publication, but the fact that he was there twice was disclosed by other witnesses, if we recollect correctly” [meaning thereby that the said murder was committed by the plaintiff, and to create a public impression and belief that the plaintiff was the murderer of the said Dr. Harvey Burdell].
“ To Rev. Dr. Cox, or some other person, in conversing the afternoon preceding his death, deceased disclosed the fact of his having an appointment to meet Dr. Blaisdell that evening. This appointment Dr. Blaisdell says he did not fulfil” [meaning thereby to insinuate that the plaintiff had falsely and deceitfully pretended to make a friendly appointment to meet Dr. Burdell on the evening of the murder, when his (the plaintiff meaning) real object was to get an opportunity to murder the said Doctor Burdell].
“ Again, it will be recollected that it was mainly from the evidence of Dr. Blaisdell that the coroner, the jury, and the public were convinced, and had it proved by satisfactory evidence, that Dr. Burdell was not in the city of Hew York on the 28th day of October, the day of the alleged marriage. Circumstances were, however, soon disclosed,—the meeting of the Artisans’ Bank directors,—which dispelled the otherwise conclusive, evidence of his absence. Again, it will be recollected, it was the evidence of Dr. Blaisdell—evidence the most remarkable and startling in its character, if true, which has ever occurred—that so aroused the indignation and suspicion of the community against Mrs. C., Snodgrass, Eckel, and the daughters of Mrs. C.” [meaning thereby, and intending to make the public believe, that while the plaintiff was the real murderer of Dr. Burdell, he (the plaintiff meaning) had actually perjured himself in his testimony given before the coroner and jury by falsely swearing to facts tending to implicate other persons as the murderers; and further meaning to insinuate and make the public believe that the plaintiff had, by his evidence, wickedly
p. 449
aroused the passions and indignation of the community against the said Mrs. Cunningham, Snodgrass, Eckel, and the daughters of Mrs. Cunningham, while in truth and in fact the plaintiff was guilty of the murder],
“ Saying nothing of that.part of Dr. Blaisdell’s disclosures of relations subsisting between Mrs. C. and Dr. Burdell—of which he has furnished the most recherché facts, as derived from conversations with the deceased—Blaisdell recounts a long conversation had the afternoon preceding the murder with Dr. Burdell, which, if true, would well-nigh convince us that Dr. B. had received an impress from the spirit-world, strong and irresistible, of his immediate horrible death” [meaning thereby that the plaintiff had sworn falsely, and was guilty of wilful and corrupt perjury in his said testimony, for the purpose of convicting the said Mrs. Cunningham of the said murder, of which he (plaintiff) knew she was innocent],
“ Had Dr. Burdell, from his life and character, been suspected of holding converse with angels and invisible spirits, there might be more credit given to these premonitions than at present we are disposed to allow. Dr. Burdell wished him to come and live with him, because he was afraid of being murdered by Mrs. 0., one of the daughters (naming her), Snodgrass, and Eckel; and he was depressed, gloomy, and apprehensive of death from these causes. Assuming there were reasonable apprehensions from Mrs. 0., what there was to awaken suspicion and fear of death on the part of the daughter, Snodgrass, and Eckel, was not disclosed by deceased, has never been disclosed, and never will be disclosed. At the time of Dr. Blaisdell’s examination, however, the community were ready to believe that all the occupants of this house were one genial and fused mass of debauchery and crime. And it is this unreasonable and unauthorized hypothesis that has since been attempted to be sustained. Whatever culpable proceedings were carried on by them in their usual intercourse,—and how few roofs could be uncovered for the inspection of the world, as grossly as this has been, without mortification and shame to the inmates!— there is nothing disclosed, save the murder of Dr. Burdell itself, which authorizes the charge of fitness of character for a murder among its occupants” [meaning thereby further to insinuate and make the public believe that the said murder was not comm.it-
p. 450
ted by any occupant of the said house, but was committed by the plaintiff, who was not an occupant of the said house, and who had further perjured himself by endeavoring in his said testimony to shield himself from the murder of which he in fact was guilty, and to convict innocent persons of his said crime].
“ Hence, then, we regard it as fair to analyze this evidence of Dr. Blaisdell in this manner: 1st. Are the admonitions of coming great and solemn events, such as sudden death, recognized hy human experience ? In reply, we answer, such admonitions are not recognized. But as many may differ with us, those who hold the contrary must regard these admonitions, when given, as correct and infallible. How it is apparent to any candid mind that Dr. Burdell was not murdered by these four persons ; hence we say there was no supernatural impress made upon his mind that he was to be so murdered. 2d. As no naimral or apparent reasons were given by him which, had they existed, would have been minutely discussed, we come to the conclusion that such conversation as Dr. Blaisdell relates is improbable” [further meaning to insinuate that the plaintiff had sworn falsely in his said testimony].
“ Again, as to the probabilities of Dr. Burdell asking him to come to the house and live with him until spring, what were the social and domestic relations of Dr. Blaisdell? Was he without a family, or did he have one that he could leave to live in another place ? Dr. Burdell knew what his situation was, and whether there was a possibility of his coming. If there was no possibility of his coming, it is irrational to suppose that Dr. B. asked him to come. If he had a wife or family, he certainly could not bring them into a house already filled, and whose inmates were impressed upon him as so terrible.
“ Again, Blaisdell, from the declarations of deceased, informs us that he had made a will. Dr. Burdell may have imparted this information to this witness. If so, the presumption is very strong that Dr. Burdell was telling a falsehood. A will to be such must have two witnesses. To these witnesses the person making it must disclose, not the contents of the will, but the fact that it is his last will and testament, and ask them to witness its signature as such. Without this disclosure the will is no will. The witnesses to this will have not yet disclosed themselves, and no application has been made to the surrogate for its pro
p. 451
bate” [thereby further insinuating and intending to make the public believe that the plaintiff* had perjured himself in his testimony in reference to the said Dr. Burdell having made a will].
“ We think it no great license to assert that the statements of this witness seem overstrained • and unreasonable. Again, we have already found him conveying erroneous impressions—we do not say misstating facts—concerning the 28th of October, possibly so important, if uncorrected, as to alone determine, in a criminal trial, the guilt and therefore the life* of Mrs. Cunningham. Is not this fearful mistake, then, a sufficient warrant, even if his story were probable, to make us regard with the greatest caution his assertions ?
“ The condition of the rooms, the open window, the burning gas, the almost certainty of Dr. Burdell’s murder soon after coming in, instead of waiting for him to be in bed and asleep, as occupants would have found most convenient, the key in the door, the blood leading to the front d6or,—all indicate that the deed was done by a party staying but a short time after the murder, and leaving hastily after it was done.
“ We come to the conclusion, then, that the murder was committed by a person familiar with and who had access to the house, and who did not remain in it. Could such a person be found who had a motive, and who knew of the unpleasant relations subsisting between Dr. B. and Mrs. C., we should say he was the man—for in the knowledge of this last fact he would find the security to lull suspicion as to himself, and to mislead inquiry.
“ But again, there are yet other and stronger facts showing that the murderer” (meaning the plaintiff) “ was not the occupant of No. 31 Bond-street, and that he has been at large and unsuspected up to the close of the inquest. The production and the evidence of the witness Farrell are prima facie proof of this. If the murderer is still at large and unsuspected, it is for his interest to satisfy the public and quiet further effort of the legal authorities with suspicions against the occupants, especially Mrs. C. and Eckel. Let us look back at the coroner’s inquest. We find that the evidence which Dr. Blaisdell” (meaning the plaintiff) “ and the other witnesses had then given was becoming wholly unsatisfactory to the intelligent public. Nearly
p. 452
a week had elapsed since the murder. The evidence of Eckel, Mrs. C., and Snodgrass had been taken. The time of the murder had been pretty satisfactorily determined. If there was an outside murderer, the matter began to look ciútica] and dangerous ; further evidence was necessary to implicate the innocent and thus screen the guilty. He” (meaning the plaintiff) “ has more work to do, and accordingly does it. It was but a trifle to what he had done. It is easily planned and easily executed. This done, the coroner gets an anonymous letter telling him of the important evidence of the man Farrell” (meaning that the plaintiff wrote the said anonymous letter).
“The letter is signed by no name, and we know not who wrote or instigated it. At this late day Farrell is found” (meaning by the plaintiff). “ He frequents saloons and rum-shops, and drinks freely. For several days, under every roof in this city, had this murder been the absorbing topic of conversation. Especially in drinking-houses, and among the poor and uneducated, who read but little, does a great crime spread its details with the greatest rapidity, and become the most absorbing; yet if we are to believe this man, he had not heard of this murder for several days. He was then one of ten, twenty, or at most fifty, on Manhattan Island who were ignorant of it, amidst over half a million. His remarkable and wonderful connection with it had never been spoken of by him to any person until the necessity of such a witness was apparent, and until about the time of the anonymous letter” [meaning thereby that the plaintiff had wickedly conspired with one Farrell, represented to be a low, drunken, and corrupt man, and had suborned said Farrell to testify falsely for the purpose of proving the said murder was committed by the occupants of said house, and thereby divert public attention from himself, who was in fact the murderer].
“ Is not his production, then, without examining his statements relative to the murder, the strongest circumstantial evidence of the murderer being at large ? Before examining the statements of Farrell, let us remember no weapons, clothing, or badges were left, save the ghastly crime itself. Neither precedent nor subsequent traces of the deed are found, the connection with which, even by false evidence, could implicate the suspected parties. The field in which to manufacture evidence was thus narrowed. The four walls inclosed the crime when com
p. 453—I. In respect to the question whether the meaning of the words charged is a question of fact or law, the authorities are in apparent conflict. Some hold that in no case is the truth or falsehood of an innuendo a question for the jury, and an answer taking issue on the innuendoes is bad (Fry v. Bennett, 5 Sandf., 65 ; Van Vechten v. Hopkins, 5 Johns., 211 ; Caldwell v. Raymond, 2 Abbotts’ Pr. R., 193 ;
mitted; hence seeing the persons doing the act could not he pretended, unless under Circumstances requiring immediate disclosure to save the witness from criminal cognizance. To have observed the murderer remove or destroy the bloody evidences of his guilt, would call for a perilous invention—1st, of time ; 2d, place ; 3d, the evidences and their destruction; 4th, inability to detect the invention of the witness by search for traces of the alleged evidences and their destruction—requiring in the aggregate an invention so complex as to be wholly unsafe and impracticable.
“ Sound leaves no trace behind. The cry of murder had already been heard. Here, then, was a plausible field for invention” [meaning thereby that the grounds of suspicion against the occupants of the said house were all the wicked, corrupt, and malicious inventions of the plaintiff].
“ Eckel, it was insisted upon, was a party to the crime. The official and public ear had been already prepared to hear and believe any thing and every thing of him. To implicate him would answer for both him and Mrs. 0. So Farrell hears and sees circumstances that leave no record of their existence, so simple and plausible as to be possible, and were they not inventions, probable, and yet, if true, so remarkable as to force every intelligent mind to the conviction, he must have been driven there by Providence solely and specially as an instrument for the conviction and punishment of Eckel.”
The defendants now moved to strike out certain of the innuendoes, on two grounds :—
I. That they were not properly framed.
II. That they were not supported by the words charged.
The innuendoes objected to are inclosed in brackets in the above statement.
Lyman Abbott, for the motion.
p. 4541 Starkie on Slander, 418-432, tit. Innuendo). Others, on the contrary, decide that whenever the article is ambiguous, its meaning is to be determined by the jury (Snyder v. Andrews, 6 Barb., 43 ; Exparte Bailey, 2 Cow., 479 ; Goodrich v.Woolcott, 3 Ib., 240; Dexter v. Faber, 12 Johns., 239 ; Dolloway v. Turrill, 26 Wend., 383 -394). It is the problem of this motion to reconcile these authorities, in so far as they are reconcilable. II. If it is the object of the innuendo to explain the meaning of the words, these authorities are entirely irreconcilable; but if its office is to connect the article with antecedent matter, which affords the desired explanation, they are not inconsistent. I submit the following propositions as, upon the whole, fairly deducible from the authorities, and as containing an explanation of the object of the innuendo, which renders both of the above apparently inconsistent propositions entirely consistent. 1. Where the article is not ambiguous, the question whether it constitutes a libel or not must be determined by the court. 2. Where the article is ambiguous, but its meaning depends upon facts about which there is no dispute, the question whether it constitutes a libel or not must be determined by the court (Van Rensselaer v. Dole, 1 Johns., 279 ). 3. When the article is ambiguous, and its meaning depends upon facts which are in controversy, the meaning of the article as explained by the facts must be determined by the jury. 4. When the article is ambiguous, its meaning can only be ascertained by proof of extrinsic facts to which the article relates, and from which, in connection with the article, its true interpretation is to be deduced by the court or jury. The opinion of witnesses conversant with the facts, as to the meaning and intent of the article, are not admissible, at least in this State (Van Vechten v. Hopkins, 5 Johns., 211 ; Gibson v. Williams, 4 Wend., 320 ). 5. The facts, by means of which it is sought to prove the signification of the article, must be distinctly averred in the complaint by way of inducement (Caldwell v. Raymond, 2 Abbotts' Pr. R., 195; Pike v. Van Wormer, 5 How. Pr. R., 171; 6 Ib., 99; Fry v. Bennett, 5 Sandf., 54 ). 6. To this should be added a colloquium, stating that the article was published of and concerning the facts set out in the inducement, as- well as of and concerning the plaintiff.
p. 4557. The object of the innuendo is then simply to connect such phrases of the article as are ambiguous with the facts stated in the inducement, concerning which the article was published, and from which its meaning is to be deduced. III. The innuendo ought not to contain an averment of facts (1 Starkie on Slander, 418, 432 ; cases cited above, under the first point). Ror can it contain the legal inference to be drawn from the facts (1 Starkie on Slander, 429). If these propositions are correct, it is clear that the pleader, in this case, has entirely misapprehended the object of the innuendo, and they should be stricken out accordingly. IV. The question raised by this motion is one of the principal questions in the case, nor could it be raised in any other way. 1. The defendants cannot deny the innuendoes. (See authorities above.) 2. They cannot conscientiously deny the publication under oath. 3. An answer admitting the publication admits it as interpreted by the plaintiff’s innuendoes (Tillotson v. Cheetham, 3 Johns., 56 ; Fiedler v. Delavan, 20 Wend., 57 ). 4. A general demurrer cannot be sustained, unless the article contains no libellous meaning, although its meaning may be very different from that imputed in the complaint. ° V. The proper course under the old practice was twofold:— First. The defendant might plead the general issue. Under this plea, the plaintiff was obliged to prove the publication; and it was left to the jury to determine whether the article proved corresponded in meaning with the sense imputed to it by the innuendoes in the declaration. It was in this way that the meaning of the article came to be a question of fact for the jury. (See cases above; 3 Johns., 56 ; 2 Wend., 57 ; 1 Starkie on Slander, 454.) Second. The defendant might interpose a special demurrer (Brooker v. Coffin, 5 Johns., 188 ). But the general issue is abolished by the Code, and motion is substituted for special demurrer. In the reform effected by the Code, the codifiers seem to have overlooked these rules of pleading in actions of-libel, which are peculiar. VI. All that the defendants’ desire is to have the object and meaning of the article in question submitted to the jury. Any decision of this motion which will effectually secure that right, "will be satisfactory to them. They are not willing to answer as the complaint is drawn, and run the hazard of being told upon
p. 456the trial that their denial of the innuendoes is “immaterial as an issue of fact” (Fry v. Bennett, 5 Sandf., 54 ), and that their admission of the publication, as alleged in the complaint, estops them from denying the meaning which is there imputed to it (Tillotson v. Cheetham, 3 Johns., 56 ; Fiedler v. Delavan, 20 Wend., 57 ; 1 Starkie on Slander, 454). —I. Section 160 of the Code authorizes pleadings to be amended on the application of opposite counsel, when the allegations are indefinite and uncertain, and provides for a motion to strike out allegations when irrelevant or redundant by the party aggrieved (Smith v. Greening, 2 Sandf. S. C. R., 702). Ho pretence is made by the defendants of either’. III. But in this case the motion is improper, and a demurrer could not be sustained. As to the merits of the motion, all the authorities refer to Van Vechten v. Hopkins ( 5 Johns., 211 ) for a true definition of an innuendo, &c. An innuendo is explanatory of the subject-matter expressed before. It cannot extend the sense of the words beyond their own meaning, unless to explain them by reference to some preceding averment or colloquium (Ib.). An innuendo may apply what is already expressed, but cannot add to or enlarge, or change the sense of the previous words (Miller v. Maxwell, 16 Wend., 9 ; Goodrich v. Woolcott, 3 Cow., 231 ). The meaning of the defendant as averred by an innuendo, is a question of fact to be decided by the jury (Roberts v. Cambden, 9 East., 96; Woodworth v. Meadows, 5 Ib., 463). In slander, where the plaintiff in his declaration, after setting forth the words spoken, avers that the defendant, by means of the words, insinuated and meant to be understood as charging the plaintiff with the crime of murder, whether or not such was the intention of the defendant, is a question of fact, to be determined by the jury, upon the evidence in support of the averment (Gibson v. Williams, 4 Wend., 320 ). Where there is
Charles F. Wetmore, opposed
II. The only way that the defendant could take advantage of the portions moved to be stricken out is by demurrer. If an innuendo enlarge the sense materially, the proper course for the defendant is to demur (Fry v. Bennett, 5 Sandf, 65 ). It is not a matter for a motion to strike out. It is only proper for a demurrer.
p. 457any ambiguity of the terms used in reference to the offence charged, to render the complaint good, it must be averred that they were spoken with the intent to charge a particular crime (Andrews v. Woodmaine, 15 Wend., 232 ; Pike v. Van Wormer, 5 How. Pr. R., 176 ; Caldwell v. Raymond, 2 Abbotts’ Pr. R., 193). IV. The defendants deny that the words published charge murder and perjury upon the plaintiff. The plaintiff insists they do, and this is sufficient to refer the meaning to the jury under the innuendo.
—This is an action for an alleged libel, published in the Daily Times, of which the defendants are the proprietors. The defendants move to have certain passages struck out of the complaint, on the ground that they consist of. innuendoes, not properly framed, and not supported by the published article containing the supposed defamatory matter.
The defendants’ counsel refers to authorities which, he maintains, are irreconcilable on the subject of innuendoes in a complaint in this description of action ; some of those authorities, he insists, deciding that an answer taking issue on an innuendo is bad ; while others decide, that its truth or falsehood can be determined by the jury, and that, therefore, an answer taking issue on it is proper. To avoid the perplexity and danger to their defence,- which these supposed conflicting decisions occasion, the defendants ask, either to be relieved from the necessity of answering those passages in the complaint, by having them struck out; or, if they should answer them, that they may do so under the sanction of the court.
On the first glance, the decisions to which the counsel for the defendants refers appear to be inconsistent; but, it will be found, I think, on carefully considering those decisions, that their apparent disagreement arises from some want of perspicuity in speaking of the nature and purpose of innuendoes, and from confounding them with what are, in reality, only propositions affirming the meaning of the supposed defamatory matter.
An action for spoken or written defamation is somewhat sui generis ; and it is not always easy to distinguish between what should,. on the trial, be decided by the court, and what should be left to the jury.
p. 458
When a publication is so indirect and ambiguous in its terms as that its libellous tendency is not apparent on its face, extrinsic circumstances must be averred, and the connection pointed out by an innuendo.
The office of the innuendo is to explain the application of the words employed in the offensive publication, by connecting them with the extrinsic circumstances previously set forth in the inducement. This is strictly its only purpose. The design of the innuendo is well illustrated by the familiar example (4 Co. R., 20), taken from an old case, where the libellous words were, “he has burnt my barn” with the innuendo “ meaning a barn with corn.” An innuendo here was necessary; because, burning a barn, at the time the action in that case was commenced, was not a felony; but, it was held to have been improperly employed, as it was not supported by introductory facts. If it had been averred, by way of inducement, that the defendant had a barn full of corn, and that in a conversation respecting that barn the words were uttered, the innuendo would have been good; and, by its connecting the libel with the inducement, the sense would have been complete. This rule, requiring the preliminary statement of extrinsic facts to support an innuendo, prevents obscurity and confusion, and is as indispensable now as under our former system, except for the purpose of showing the application to the plaintiff of the defamatory matter, out of which the cause of action arose; it being sufficient for this purpose to state generally, that the same was published “of and concerning the plaintiff” (Code, § 164); but, where the words do not convey a direct slanderous imputation, it is still necessary to state extrinsic facts, for the purpose of showing the defamatory tendency of the words themselves, as in the case from Coke, to which I have referred.
I repeat, then, that the office of an innuendo is to connect the published words with persons or facts previously named, and being merely explanatory, cannot enlarge the sense of words, or supply or alter them where they are deficient. Any defect, therefore, in the innuendo, such as, that it is not supported by the prefatory extrinsic facts, or that it enlarges their meaning, or alters them, or substitutes other words in their place, is a defective statement of the case, on the face of the pleading, and, under the old system could be taken advantage of by a special
p. 459
demurrer; under the Code, as demurrers to complaints are abolished as a remedy for any formal defect, except for the improper joinder of causes of action, it can, I presume, be taken advantage of only by motion, as the defendants have endeavored to do in the present instance.
But, are the passages in the complaint, to which the defendants take objection, innuendoes in the proper sense of the term? Nothing is more certain now than that it is the province of the jury to determine the meaning of the libel'; it is merely the duty of the court to define what constitutes it, referring to the jury the consideration of. the particular publication, and allowing them to say whether it is comprised within that definition or not. If this is so, assuredly allegations in the complaint, that the publication imputed certain crimes to the plaintiff,—in other words, asserting the meaning of the words complained of,—is only asserting a fact, the truth or falsehood of which the jury have to decide. The passages which the defendants move to have stricken out are obviously not inserted for the purpose of explaining extrinsic facts previously set forth in an inducement, or for the purpose of connecting the offensive words with those facts; this would be a .question of form, exclusively for the consideration of the court; but they are an asseveration of the import of the publication itself, which, if the plaintiff is right, constitutes the injury for which he demands redress. The passages then sought to be stricken out present the precise points upon which the jury are to pass. In short, although bearing the semblance of innuendoes, they are allegations of issuable facts, founded, according to the theory of the plaintiff, upon the matter contained in the published article set forth in the complaint.
Motion denied, without costs.