Klemin v. Smith

250 A.D. 269, 293 N.Y.S. 981, 1937 N.Y. App. Div. LEXIS 8322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1937
• Status: Published

Opinions

Per Curiam.

The “ first,” “ third,” “ seventh ” and “ eighth ” causes of action should be dismissed because the alleged defamatory matters set forth therein are not libelous per se.

As the language of the alleged libelous matter in each of the remaining causes of action is susceptible of an innocent as well as of a disgraceful meaning, the question becomes one of fact for a jury to decide. (Demos v. N. Y. E. J. Publishing Co., 210 N. Y. 13; Briarcliff L. Hotel v. C.-S. Publishers, 260 id. 106, 118; Zbyszko v. N. Y. American, Inc., 228 App. Div. 277, 279.)

The order should be modified by dismissing the “ first,” “ third,” “ seventh ” and “ eighth ” causes of action and as so modified, affirmed, without costs.

Martin, P. J., McAvoy, O’Malley and Cohn, JJ., concur; Dore, J., dissents in part.