New York Bureau of Information v. Ridgway-Thayer Co. , 104 N.Y.S. 202 ( 1907 )

Laughlin, J.:

This is an action for libel. The ground of the demurrer is that the facts alleged do not constitute a cause of action. No special damages are alleged. The question, presented by the demurrer is whether the article alleged to have been published of and concerning the plaintiff is libelous per se. The plaintiff alleges that it is a domestic corporation lawfully engaged in conducting in the city of New York a reporting agency “ for the purpose of giving information to its subscribers relative to persons, corporations and firms, their business standing and reputation ” and “ has established for itself a high reputation among the business community for the accuracy, integrity and trustworthiness of its reports, and has enjoyed a good name, fame and reputation among its. customers and the business community in general, and that as a result thereof ” its business has been profitable.

The defendant corporation was the publisher of “ Everybody’s Magazine,” in which the alleged libelous. article was published; and the defendant Bidgway was its president, having charge of the conduct-of its affairs and the management of . the publication, and the defendant Teague composed the article and. instigated its publieation. In the J uly issue of said magazine for the year 1906, in an. article entitled “ Bucket Shop Sharks,” the defendant published, the following: '

■ “One of Miner’s most intimate friends and active lieutenants is Henry -Burton King, founder of, the New York Bureau of'Information, now managed by his brother J. D. W. King. King is a tout,. sleeli enough in his methods to have corralled bankers and brokers -of unimpeachable legitimacy as clients for the' New York Bureau of Information. His portrait, until it was surreptitiously removed, was Ho, 295-G in the Chicago Rogues’ Gallery, and' he has the distinction of having served a penal sentence for the larceny of goods from such masters of merchantry as Lévi Z. Leiter and Marshall Field.” . . '

The sufficiency of the. complaint 'does not depend wholly upon the article as published. . The plaintiff alleges, by way of innuendo, that the defendant meant by said article and intended to convey the belief to its readers and to the public in general that the plaintiff’s business-was managed by persons of notoriously bad character; • that it was conducting an unlawful and illegitimate business; that it . was organized to promote improper schemes and undertakings; that it is and lias been conducted in the interest of persons seeking to defraud the public bymeans of gambling on horse faces and the fluctuations of the stock market; that J. D. W, King, president of. the plaintiff, is a tout, and a procurer. for gambling houses, and adopted improper and unlawful methods in soliciting business for the plaintiff; that the. plaintiff’s president had been guilty of the crime of larceny, had served a penal sentence'therefor, and. used improper and unlawful nieans in procuring the-removal of his picture from tiie Chicago Rogues’ Gallery. The; falsity of the article and the, maliciousness of the publication are alleged ; and injury, to the plaintiff in its reputation by a loss of public confidence which if theretofore enjoyed with resulting financial loss and injury to .its. business are likewise alleged.

The ’.article ‘ is. not susceptible of every meaning, ascribed to it in the innuendoes. It-may be that the charges that King is a' tout and with respect to. his having corralled clients for the. plaintiff , and with respect to his having served a penal sentence and his picture having been in and surreptitiously removed from the rogues’ gallery, refer to Henry Burton King, the founder of the plaintiff, and not to his brother, J. D. W. King, the present president and manager. If it refers tó the president and present manager there could be but little doubt that the article, would.be libelous per se, because it is manifest that such a charge against the. present manager and chief officer of a corporation conducting a business essentially confidential, would directly injuriously affect its credit and cause pecuniary injury, which is the test in cases of libel against corporations (Reporters’ Assn. v. Sun Printing & Publishing Assn., 112 App. Div. 246; 186 N. Y. 437; Union Associated Press v. Heath, 49 App. Div. 254), by injuring its'reputation for proper and honest bush ness methods, and for procuring, conveying and furnishing reliable information. Assuming, however, that those charges relate to the founder of the plaintiff, still! think thearticle is libelous perse. In that view it clearly shows, not only the organization of the corporation by this notorious disreputable character and criminal, but that he remained connected with it and took an active part in soliciting business for it. Tlie charges against his business methods while acting for the corporation characterize its business methods and directly affect its credit and cause it pecuniary injury. It'does not appear that his business connection with the plaintiff -lias been severed; but even though it has, still while it may not be said as a matter of law that the article reflects upon the business and the business methods and management" of the plaintiff, yet I think that the jury might find that that was the meaning intended to be conveyed by the publication, and was the Sense in which it would probably be understood by those who read it; and if so,- it would I think naturally-and necessarily result in pecuniary injury to the plaintiff, be libelous per se and not demurrable. (Morrison v. Smith, 177 N. Y. 366.) I am of the opinion, therefore, that the demurrer was properly overruled;

It . follows that the interlocutory judgment should be affirmed,, with costs.

Patterson, P. J., and Clarke, J., concurred; Ingraham and Scott, JJ., dissented. ■ •