Totten v. Sun Printing & Publishing Ass'n

109 F. 289, 1901 U.S. App. LEXIS 4782

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: May 13, 1901
• Status: Published

Opinion

LACOMBE, Circuit Judge.

Defendant’s counsel having now submitted a demurrer certified as required by rule 27, the same will be filed nunc pro tunc in place of the uncertified one, and the present motion treated as one for judgment upon demurrer as frivolous. The complaint sets forth a publication, which by innuendo charged the plaintiff with having been of unsound mind, and with having, in consequence of such mental unsoundness, been removed from a position as professor in a scientific school. The demurrer raises the question whether such publication is libelous. The demurrer is not frivolous. The point raised is fairly arguable, especially in view of the-decision in Mayrant v. Richardson, 1 Nott & McC. 347. Therefore judgment should not be taken upon it as frivolous. Inasmuch, however, as both sides express the wish to expedite the cause, the question raised may be treated as if it were formally presented upon the trial calendar. The weight of authority and of reason seems to sustain the proposition that such a publication is libelous. The demurrer is therefore overruled, with leave to answer within 20 days.