Kirman v. Sun Printing & Publishing Ass'n — 99 A.D. 367

Majority

p. 367

Tillie Kirman, Appellant, v. The Sun Printing and Publishing Association, Respondent.

Headnote

Libel—article alleging the absence of the bridegroom, when the brida attended at the place where they were to have been married—when libelous per se.

The complaint in an action for libel averred that the defendant published an article which referred to an alleged intended marriage between the plaintiff and one Goldberg, which marriage was to have been celebrated on a certain day at a hall; it then proceeded to state that the preparations had all been made; that a rabbi was in attendance; that the plaintiff with her bridesmaids appeared, but that the bridegroom did not appear; that the tables were spread; that the orchestra began to play, and that the guests enjoyed themselves by dancing while they waited for the arrival of the bridegroom; that the plaintiff waited

p. 368

an hour for the bridegroom, and when told that he could not be found gave a scream and fell to the floor, and was taken home in a coach; that the guests made a rush for the tables, but that the waiters cleared them in “ double quick time; ” that the proprietor of the hall saved the provisions and declared that he lost “ twenty chickens, twenty geese and a whole lot of other stuff; ” that there was a riot there, but that the waiters were trained and saved the tables

The complaint further alleged that the whole of the article was false, and that in consequence of its publication the plaintiff had been shunned by her acquaintances.

Held, that the article held the plaintiff up to ridicule by making her the prominent figure in a purely fictitious narrative, and that it was libelous per se.

Ingraham, J., dissented.

Appeal by the jdaintiff, Tillie Kirman, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of June, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the amended complaint and dismissing the said.complaint.

Anton Gronich, for the appellant.

Franklin Bartlett, for the respondent.

This is an action for libel. Pinal judgment was entered in favor of defendant on demurrer to an amended complaint. The ground of the demurrer is that the complaint does not state facts sufficient to constitute a cause of action. The argument in favor of the demurrer is that the words published of and concerning the plaintiff are not libelous per se, and that there is no sufficient allegation of special damage to permit of the maintenance of the action.

The article refers to an alleged intended marriage between the plaintiff and one Goldberg, which marriage was to have been celebrated on a certain day at a hall, and proceeds to state that 'the preparations had all been made and a rabbi was in attendance, and that the plaintiff with» her bridesmaids appeared, but the bridegroom did not appear; that the tables were spread and the orchestra began to play, and the guests enjoyed themselves by dancing while they waited for the arrival of the bridegroom; that the plaintiff waited an hour for the bridegroom, and then she became suspicious and was told that Goldberg could not be found; she gave a scream

p. 369

and fell to the floor, and was taken home in a coach ; that the guests made a rush for the tables, but the waiters cleared them “ in double quick time,” and the proprietor of the hall saved the provisions and declared that he lost “ twenty chickens, twenty geese and a whole lot of other stuff;” that there was a riot there, but the waiters were trained and saved the tables.

The charge in the complaint is that the whole of this article is false, which includes the necessary inference that the plaintiff was not engaged to Goldberg; that she never attended at the hall to be married to him, and that no such occurrences as those stated in the article took place with reference to her. She has been held out to the public as being the central figure or heroine, so to speak, of what is asserted to be an absolutely fictitious and absurd story. The article necessarily tends to her disparagement, and it holds her up to ridicule by making her the prominent figure in a purely fictitious narrative, and she avers in her complaint that in consequence of its publication she has been shunned by her acquaintances. But apart from any question of special damages the article is libelous per se. The cast of the article presents a ridiculous set of circumstances and the plaintiff is made the central figure of the'whole story.

The judgment should be reversed, with costs, and the demurrer overruled, with costs, with liberty to the defendant to withdraw demurrer and to answer within twenty days on payment of costs in this court and in the court below.

Van Brunt, P. J., McLaughlin and Laughlin, JJ., concurred ; Ingraham, J., dissented.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below.