Lowe v. Bennett

Gaynor, J.:

The plaintiff pleads an innuendo that the meaning of the language of the alleged libel was, and the defendant intended thereby “ to say and impute against the plaintiff ”, that flashlight photographs which revealed the figure of Dr. Cruikshank “ disrobing in an apartment of the house of the plaintiff ” were introduced in evidence, “ and furnished evidence ” that the plaintiff committed adultery with' him. She thereby limits and confines her complaint to the words and meaning thus singled out as constituting the alleged libel. The statement in the alleged libel, and the meaning therefrom alleged in the innuendo and attributed to the defendant, viz., that photographs which only showed Dr. Cruikshank disrobing in an apartment of the plaintiff’s house “ furnished evidence ” that she committed adultery with him, is argumentative. To say that a thing is evidence of a dereliction of which it is no evidence may be libelous if it be’ broad enough to impute that the dereliction occurred. The innuendo therefore assigns no libel unless the statement that Dr. Cruikshank was photographed disrobing in an apartment of the plaintiff’s house', coupled with the statement that such photograph was evidence of adultery with him by the plaintiff, amounts to a charge that she did commit adultery with him-. The gist of the alleged libel, (if it be a libel), is an imputation of adultery. If there be no such imputation there is no libel. As the alleged defense does not set up that such adultery was committed it is no defense. The course for the plaintiff is to take that objection on the trial, not having demurred.'

I have leniently accepted the innuendo as meaning to state that the plaintiff was named as the paramour of the husband in the answer in the action for divorce, for that is the meaning I find in the brief of the learned counsel for the plaintiff. The allegation in the innuendo is that she was named “ as co-respondent ”. Eeither in our law nor in the dictionary has the word co-respondent any such meaning. ■ In England in an action for divorce, the plaintiff and the defendant, as we call them, are the petitioner and-the respondent. In such an actión there the husband may make the paramour a party respondent, and in that way he is and is called “ co-respondent ”. "With us if the paramour could be so joined he would be a “ co-defendant ”, not a “ co-respondent ”. Lawyers and judges speak scientifically and with precision out of regard to the science of the law.

The motion is denied.