King Kullen Grocery Co. v. Astor , 291 N.Y.S. 488 ( 1936 )

Action for libel. As to defendant Moley, order granting motion to dismiss the complaint and judgment entered thereon unanimously affirmed, with ten dollars costs and disbursements, with leave to plaintiff to plead over if it be so advised. As to defendants Astor and Today Associates, Inc., order and judgment reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to said defendants to answer within ten days from the entry of the order hereon. If a jury should say that the language justifies the vicious meaning as being the one intended to be conveyed, the publication is libelous per se. Where words are capable of more than one interpretation, the true sense in which they were meant is for the jury. If that sense be the vicious one for which plaintiff contends, then the language adversely affects the integrity and good repute of the plaintiff business corporation. It imports that it is a concern whose customers will find it unreliable and unsafe to deal with. The fact that it holds itself out to be a price-wrecker does not mean that it holds itself out to be a price-wrecker by dishonorable means. If it is a price-wrecker or cutter by honorable means, no opprobrium may be attached to it with impunity by such a publication as that of which complaint is made, if a vicious meaning be found by a jury to be the one intended. (First Nat. Bank v. Winters, 225 N. Y. 47; Samson United Corporation v. Dover Mfg. Co., 233 App. Div. 155; Sullivan v. Daily Mirror, Inc., 232 id. 507; Kloor v. New York Herald Co., 200 id. 90.) There is, however, in the complaint no allegation that fastens responsibility on defendant Moley for the alleged libelous article. The complaint is insufficient as to him. If plaintiff be so advised, an amended complaint with the needful allegation may be served. Lazansky, P. J., Hagarty, Carswell, Davis and Taylor, JJ., concur.