Barnard v. Press Publishing Co. — 43 N.Y. St. Rep. 507

Majority

p. 507

David C. Barnard, Resp’t, v. The Press Publishing Co., App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

Libel—Pleading—Innuendoes.

Where the words of an alleged' libel are ambiguous and if used in a particular sense may be defamatory, the question whether they_ were so used is for the jury, and innuendoes are proper to show the latent injurious meaning, and should not be stricken from the complaint.

■ Appeal from an order, entered in Chemung county, September, 1891, denying in part the defendant’s motion to strike out certain portions of the plaintiff’s complaint. The order, so far as the appellant complains, refused to strike out the in endoes contained in the plaintiff’s complaint

John B. Joslyn, for resp’t; J. M. Keatings, for opp t.

The only question on this appeal is whether the special term erred in not striking from the complaint the innuendoes averring the meaning which the plaintiff claims should be attached to the words alleged to have been published by the appellant Whenever a defendant’s words are capable both of a harmless and injurious meaning, it will be a question for the jury to decide which meaning the hearers or readers would on the occasion have reasonably given to the words, and an innuendo is essential to show the latent, injurious meaning. Odgérs on Libel <& Slander, m. p. 112. ■

“ If the words are capable of the meaning ascribed to them, however improbable it may appear that such was the meaning conveyed, it is properly the province of the jury to say whether they were in fact so understood.” Newell on Defamation, 619 ; Woodruff v. Bradstreet Co., 116 N. Y., 220 ; 26 St. Rep., 523 .

The defendant is in no way embarrassed by the presence of the innuendoes in the complaint. In fact, it is an advantage to him. He can deny that he spoke the words, or he can admit that he

p. 508

spoke them, but deny that they convey that meaning. Newell "on Defamation, 628. .

In this case the words alleged were, perhaps, somewhat ambiguous in their import, or may permit of more than One interpretation, and if used in a particular, sense may be defamatory. The question whether they were used in that sense would be for a jury, and innuendoes were proper to state the sense in which they were claimed to have been used.

We find no error in the order appealed from requiring a reversal.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., concurs.

Merwin, J.—I think the order should be affirmed.