Dexter v. Press Publishing Co. — 36 Misc. 388

Majority

p. 388

Olive M. Dexter, Plaintiff, v. The Press Publishing Co., Defendant.

(Supreme Court, New York Special Term,

November, 1901.)

Headnote

Libel — When it is not of a house and is of its occupant — Demurrer.

A complaint which alleges that the defendant’s newspaper published an article stating that the police, upon information furnished by a citizens’ committee, raided a house occupied by the plaintiff as a boarding-house, that persons in it were guilty of gambling, that certain methods were adopted to secure the information which led to the raid, and that the persons seeking the information were ushered by, the plaintiff’s servants into the room where the gambling occurred, is not demurrable as a libel of the house, and not of the plaintiff, as it may properly be inferred from the statement relative to the acts of her servants that the gambling was conducted with her knowledge — an illegal act under Penal Code § 343.

Demubbeb to complaint in an action for libel.

The article claimed to be libelous is as-follows:

“ JEEOME LEADS EAID ON ‘ BEAOE ’ GAME.

“ Mb. Baldwin, of the Fifteen, Saw an Advebtisement fob Man with Money to Invest.

“ Justice William Travers Jerome, accompanied by Frank Creighton, a detective of the Committee of Fifteen, and Patrol

p. 389

man William Day, made a raid last night, at No. 134 West Seventy-ninth Street (meaning plaintiff’s said boarding-house) and arrested five men. They were locked up in the West Sixty-eighth Street Station, charged with violating the laws against gambling. The prisoners were Moses P. Phillips, No. 134 West Seventy-ninth Street; George Hill, No. 45 Pulaski Street, Brooklyn; William McClellen, No. 101 West Eighty-ninth Street; James Harrison, No. 148 West Ninety-first Street; Coe Larkin, No. 209 West Sixty-sixth Street. Phillips was held in $1,500 bail by Justice Jerome, who held Court in the West Sixty-eighth Street Station. The other prisoners were held in $1,000 bail each.

“ Detective Answered the Ajdv.

“ Although the raid was ordered by William BL Baldwin, Jr., chairman of the Committee of Eifteen, it was not part of the work mapped out by the committee. Mr. Baldwin noticed an advertisement that a business man desired to meet some one with $500 to invest in a lucrative business at No. 134 West Seventy-ninth street (plaintiff’s boarding-house meaning). He ordered Detective Creighton to go there. Creighton found that the place was a fashionable boarding-house, conducted by Mrs. Olive Dexter (this plaintiff). The maid who answered his ring directed him to rooms occupied by Phillips. Several other men were there. Phillips, according to the story of the detective, said he had a great scheme for making money — a brace faro game. He asserted that the dealer, by using a box he had, could beat the player with regularity.

“ Creighton Lost $75.

“ Creighton was skeptical and insisted upon being shown that the brace game was sure to win before investing $500 in the enterprise. He played a little while and lost $75. That convinced him, and he promised to return last night (March 16, 1901, meaning) with the $500. Mr. Baldwin directed the detective to keep the appointment and Justice Jerome was asked to accompany him. Together they went to the West Sixtv-eighth Street Station shortly before ten o’clock and Patrolman Day was assigned to accompany them. When they reached the house (meaning plaintiff’s said boarding-house) a maid directed them to Phillips’ suite, where Phillips and the other men, all fashionably dressed, were waiting.

p. 390

The arrests followed. There was much confusion when the patrol wagon appeared. Mrs. Dexter (meaning plaintiff) and her boarders were astounded, and they protested against the raid until convinced that the action had not been unwarranted. When searched at the station, the total of $10.16 was found on the prisoners.”

Sanders & Gray, for plaintiff.

Bowers & Sands, for defendant.

This is a demurrer to a complaint in an action for libel. The ground assigned by the defendant is the insufficiency of the complaint to state facts constituting a cause of action. The article claimed to be libelous was published in defendant’s newspaper and is somewhat lengthy. It is set forth in extenso in the complaint. It states that a raid was made by the police authorities of the city of New York through information furnished by a committee of citizens known as the “ Committee of Fifteen ” on a house occupied by the plaintiff, and used by her as a private boarding-house. It charges that certain persons in the house were guilty of gambling, and recites the method adopted to secure the information which led to the raid, and how persons seeking the information were ushered into the room where the gambling occurred by the servants of the plaintiff. The defendant’s contention is that the article complained of, if libelous, is merely a libel of the house, and not of the plaintiff, and. in the absence of any allegation of innuendo that the article meant that plaintiff knew of the existence of gambling, and in the absence of allegation of special damage that the complaint is defective. Reliance is placed by defendant for support of the position talcen by it on the cases of Kennedy v. Press Pub. Co., 41 Hun, 422 , and Bosi v. New York Herald Co., 33 Misc. Rep. 622 ; affd. in 58 App. Div. 619 . Neither of these cases, however, is in point on the libel here complained of. In the Bosi case, the alleged libel was that plaintiff’s restaurant was the resort of anarchists. In the Kennedy case, the alleged libel, if any, was that the plaintiff was the proprietor of a concert hall which was the resort of improper characters. There was no charge against the individuals who conducted the places, nor any claim that there was anything illegal in the maintenance of the places. In the present case, however, it may be fairly inferred from the

p. 391

alleged libelous article, by reason of the statements concerning the connection of plaintiff’s servants with the gambling, that such gambling was conducted on the premises with plaintiff’s knowledge, it being unlawful under our law either to keep a room where gambling is conducted or to knowingly let or permit it to be used for such purpose. Penal Code, § 343. Giving the complaint the liberal interpretation to which it is entitled, and allowing for the fair and reasonable inferences from the allegations, I am of the opinion that the demurrer must be overruled. The demurrer is overruled, with leave to defendant to answer upon payment of costs.

Demurrer overruled, with leave to defendant to answer upon payment of costs.

Cases cited

Bosi v. New York Herald Co. 33 Misc. Rep. 622 N.Y. Sup. Ct. p. 390