Breen v. New York Herald Co. — 55 Misc. 567

Majority

p. 567

Matthew P. Breen, Plaintiff, v. The New York Herald Company, Defendant.

(Supreme Court, New York Special Term,

August, 1907.)

Headnote

Libel and slander — Words imputing crime — Certainty of charge — Where natural import is libelous.

Upon a demurrer to a complaint in an action for libel the question is not whether the publication can be found, by a keen and discriminating intelligence, to charge nothing when closely read, but whether its natural import is libelous as it strikes the mind of the average reader.

Where, in a newspaper article entitled “ Blackmail is Easy by Policy System,” the portrait of plaintiff is published with others

p. 568

and below them is printed “Men Mentioned in the Police Blackmail Scandal and the Man who Knows ” and the article contains allusions to the individuals whose portraits are published and they are described, some as keepers of gambling-houses who paid the police to escape prosecution, and others as members of the police force charged with corruption, and no reference is made to plaintiff except in one minor instance toward the end of the article, and the article states that as part of the system referred to an arrest was made and a small fine imposed on a plea of guilty to the lesser of two charges, preceding which is another statement - that it is a pretty serious matter for a person to be convicted of breaking the Excise Law, the article may be reasonably assumed to mean that the magistrate was associated with the blackmailers. And where the article instances the procedure for the collection of blackmail, where a complaint of robbery is made by a patron of a disreputable resort, and states that when the case is called in court a lawyer is furnished through the police sergeant who succeeds in “ fixing ” the case, it imports to the ordinary mind that the magistrate must have something to do with the settlement. In such a case a demurrer to the complaint should be overruled.

Issues of law upon demurrer to complaint for insufficiency. Action for libel.

William McArthur, for plaintiff.

Robert W. Candler, for defendant.

The argument in support of the demurrer is directed to the unreasonableness of the innuendoes stated in the complaint, when taken with the matter published. As I view the case, however, certain of the innuendoes are supported by the publication, so far as to justify a finding, in reason, that the meaning attributed by the complaint is the true meaning, and the demurrer must be overruled.

’ The article complained of describes a system of police blackmail. It is headed “ Blackmail is Easy by Police System,” following which heading are several photographs of individuals, with their names, the central figure being the largest'—a full length picture of a policeman — and below are the words: “Men Mentioned in tfye Eolicp Jllpkn^il Seapffal mi ¥m wbo ”

p. 569

The plaintiff, a police magistrate, is portrayed among the rest; and, to the ordinary reader of the article, reference is obviously made to him as one of the “ Men Mentioned in the Police Blackmail Scandal.” The words used, in connection with the photographs and their placing, can have no other meaning.

In the article there are allusions to the individuals whose photographs are displayed with the plaintiff’s; and they are described, some as keepers of gambling-houses whose interests lead them to pay money to the police to avoid prosecution, and others as members of the police force involved in more or less open charges of corruption. Ho reference to the plaintiff is made by name, except,in one minor instance toward the end of the article; but, when describing the operation of the blackmailing system, the publication states that, as one of the steps in the scheme, an arrest is made, a plea of guilty entered to the lesser of two complaints before the magistrate, and a small fine is imposed and paid. Here the reader of the article finds a connection between the magistrate and the “system,” so-called. The headlines and the pictorial display have prepared his mind for revelations which touch a city magistrate, and the manner in which the magistrate is finally introduced points to sinister dealing. This very part of the article states that “ it is a pretty serious matter for a person to be convicted of breaking the Excise Law;” following this comes the announced procedure of imposing a small fine. The impression made, as may be reasonably assumed, is that the magistrate was associated with the blackmailers; otherwise there is no point to his careful protrayal among the “ men mentioned in the police blackmail scandal.”

Again, the article instances the procedure for the collection of blackmail where a complaint of robbery is made by a patron of a disreputable resort; and it is stated that, when the case is called in court, a lawyer is furnished, through the police sergeant, who succeeds in “fixing” the case. Taken with the headlines, this imports to the average reader that the magistrate must have something to do with the unlawful settlement; a,nd, w^thopt pursuin| the robjegf,

p. 570

in all its phases, as suggested by the innuendoes pleaded, it is apparent that the complaint reasonably tenders an issue of fact as to whether the article does not, by its headlines and pictures in connection with all the published matter, charge the plaintiff with participation in a criminal conspiracy..

Upon this demurrer the question is not whether the publication can be found, by a keen and discriminating intelligence, to charge nothing when closely read, but whether its natural import is libelous as it strikes the mind of the average reader of a newspaper. Turton v. New York Rec. Co., 144 N. Y. 144 ; De Sando v. New York Herald Co., 88 App. Div. 492 . So tested, the complaint states a cause of action.

Demurrer overruled, with costs, with leave to defendant to plead over, upon payment of costs, within twenty days.

Cases cited

Turton v. New York Recorder Co. 144 N. Y. 144 N.Y. 1894-12-11 p. 570
De Sando v. New York Herald Co. 88 App. Div. 492 N.Y. App. Div. 1903-12-11 p. 570