Ramscar v. Gerry — 16 N.Y. St. Rep. 789

Majority

p. 789

William H. Ramscar, App’lt, v. Elbridge T. Gerry, Resp’t.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

Libel—Pleading—Sufficiency of complaint.

The libel alleged was a mere printed statement that the plaintiff was notified that if he wished to avail himself of the act of the legislature in regard to baby farming, he must comply with its terms, and that having applied for a license he was refused. There was no allegation that the plaintiff ever was engaged in baby farming. On demurrer, Held, that the complaint did not state a cause of action.

Appeal from a judgment dismissing a complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Richard Busteed, for app’lt; Joseph H. Choate, for resp’t.

This was an action for libel which was in these words: “The legislature last winter, at the instance of this society passed a very stringent amendment to the Penal Code forbidding baby farming. A copy of this law immediately after its enactment was served on Mr. Ramscar with a notification by the society that he must comply with the terms thereof. He at once made an application for a license to baby farm to the board of health, and the society as promptly interposed a protest, and was published in the Commercial Advertiser. It is set out in the complaint with proper inuendos, but there is no allegation that the appellant ever was engaged in baby farming, and the omission of that is fatal to his success upon this appeal.

The alleged libel is a mere statement that the plaintiff was notified that if he desired to avail himself of the act of the legislature, he must comply with its terms, and having applied for a license he was refused. It does not follow, by any means, that the refusal, which was the sting of the libel, was based upon any misconduct of his, either in baby farming or in anything else. Whether or not the language complained of, as suggested by the counsel for respondent, might have been made actionable by alleging special reasons, is not the question.

There are cases kindred to this and decisive of it by analogy, if adjudications be necessary to establish the propriety of. the judgment appealed from. For example, an allegation that a plaintiff, who was a coroner and physician, did not know the signs of death as accurately as another physician,

p. 790

was held not to be actionable, because it was not alleged that the publication was made concerning the plaintiff as a physician. Purdy v.Rochester Printing Co., 96 N. Y., 372 .

This opinion might be extended by a consideration of various suggestions in regard to the libel" and its cháracter and the phrase “ baby farming,” and what was meant by it, and what was understood by it, but it is. deemed unnecessary to indulge in a review of every one of these elements. _ It is enough for the purposes of this appeal that the plaintiff has failed to show that the defendant' connected his name with odious or reprehensible practices, and was, therefore, denied the license which he sought to obtain.

For these reasons the judgment "appealed from should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.