
    Felix J. Gallagher, Appellant, v. William C. Bryant and Others, Respondents.
    
      Tibet — a newspaper article susceptible of an interpretation ' ‘ imputing moral turpitude,” presents a question for the jury. .
    A newspaper article referring to a charge that one Molineux, who had been indicted for the murder of a Mrs. Adams, also murdered Henry Barnet, which under the heading “ Gallagher May Have Confessed; Startling Bumor ■ from the District Attorney’s office; Was the Friend of Molineux;’’ continues, "It was learned positively ttyis morning that startling evidence has been placed .in possession of the District Attorney by Felix Gallagher, the ex-clerk of the Knickerbocker Athletic Club, and close friend of Molineux, who has all along been suspected of knowing all the details of 'the defendant’s actions: It is :said that he made a confession to the District Attorney of the entire affair, and that it will fasten the guilt of Barnet’s death firmly on the prisoner. That ‘Gallagher held the key to the mystery in the case was positively stated in the Times last week, when the detectives were started out on Tuesday last to keep a watch on his movements,” is suseéptible of an interpretation imputing moral turpitude to Gallagher, arising out of his knowlege of a murder mystery and his concealment thereof until after the employment of detectives to watch him and obtain the startling evidence in his possession, resulting in a confession to-the district attorney; and a complaint in-an action of libel brought by Gallagher, setting up the article in question, is not demurrable, it being for the jury to say whether the language used therein was employed in its harmless or iu its libelous significance.
    Goodrich, P. J., dissented.
    Appeal by the plaintiff, Felix J. Gallagher, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 23d day of June, 1899, upon the decision of the court, rendered after a trial at the Kings-County Special Term, sustaining their demuprer to the complaint on the ground that it does not state facts sufficient to constitute ¡a-cause of action, ánd also from an order entered in said clerk’s office on the 23d day of June, 1899, sustaining said demurrer.
    
      Charles Lex Brooke, for the appellant.
    
      George H. Fisher, for. the respondents.
   Willard Bartlett, J.:

The sufficiency of the complaint in this action depends upon the question whether • the article ' concerning the plaintiff, which was published in the defendants’ newspaper, is fairly capable of being-regarded ás a libel or not.

The article relates chiefly to a charge that Roland B. Molineux,. who had been indicted for the murder of a Mrs. Adams, in the-county of New York, was also responsible for the killing of a man named Henry Barnet. Under the heading of “ Gallagher May Have Confessed; Startling Rumor from the District Attorney’s-Office; Was the Friend of Molineux,” the article contained the-"following statement concerning the-plaintiff: “It was learned positively this morning that startling evidence has been placed in. possession of the District Attorney by Felix Gallagher, the ex-clerk, of the Knickerbocker Athletic. Club,.and close friend of Molineux,. •who has all along been suspected of knowing all the details of the defendant’s actions. It is said that he made a confession to the District Attorney of the entire affair, and that it will fasten the guilt, of Barnet’s death firmly on the prisoner. That Gallagher held the-key to the mystery in the case was positively stated in the Times last week, when the detectives were started out on Tuesday last to keep a watch on his movements.” «

The learned judge at Special Term held that the article in question could not be fairly construed as charging the. plaintiff with the commission of any crime; but, conceding this view to be correct, it does not follow that .the language is not libelous. Language may be libelous, although it imports no criminal offense. It is enough if it is such as to subject the plaintiff to obloquy, reproach or disgrace. “ Defamatory words in common parlance are such as impute some moral delinquency or some disreputable conduct to the person of whom they are spoken.”. (Moore v. Francis, 121 N. Y. 199.)

It follows that the imputation of moral turpitude by means of a published writing is clearly libelous. Is not the publication of which complaint is made in this action fairly capable of such a con-* struction as to import that the plaintiff has been guilty of some moral delinquency, at least, in connection with the case of homicide to which the article refers 1 In the first place, it conveys the idea that the plaintiff has confessed something. It is true that the verb “ to confess ” has several different meanings, but it is ordinarily used to characterize the admission of personal sin or wrongdoing. Then we have the statement that the plaintiff being a close personal friend of Molineux and having all along been suspected of knowing the details of Molineux’s actions, is said to have made a confession to the district attorney of the entire affair, which will fasten the guilt of Barnet’s death firmly on the prisoner. When we find this statement followed by the charge that Gallagher held the key to the mystery in the case, as was positively stated in the defendants’ newspaper in the previous week, when the detectives were started out to keep a watch on the plaintiff’s movements, there seems to be a pretty clear intimation that the plaintiff’s course of conduct, with reference to the Barnet case, had been such as justly to subject him to the detective surveillance of the police authorities. Is not the article, taken as a whole, susceptible of an interpretation imputing moral turpitude to the plaintiff arising out of his knowledge of a murder mystery and his concealment thereof until after the employment of detectives to watch him and obtain the startling -evidence in his possession, resulting in a confession to the district attorney %

If it is, then the case is one in which the complaint cannot ■ be condemned on demurrer. In an action for defamation where the words published are of doubtful signification, and capable of being regarded as either libelous or innocent, it is for the jury to say in which sense the language was used. (Dexter v. Taber, 12 Johns. 239; Goodrich v. Woolcott, 3 Cow. 231; Schoonoven v. Beach, 23 Wkly. Dig. 348; Patch v. Tribune Association, 38 Hun, 368; Garby v. Bennett, 40 App. Div. 163.) It is said in one case that where there is room for the least criticism upon the import of words of doubtful meaning, the question as to what they really mean must be left to the jury. (Ex parte Baily, 2 Cow. 479.) I think that the article set out in the complaint here falls_ within the rule laid down in the authorities cited. Different meanings may be ascribed to it, one libelous and the other harmless. This makes a question for the jury, and the complaint cannot be held bad as matter of law

The judgment should be reversed, with costs, but with leave to the defendants to answer upon the payment of such costs.

All concurred, except Goodrich, P. J., dissenting.

Goodrich, P. J.

(dissenting):

I dissent, on the ground that I cannot discover anything in the article in question which, in the language of section 242 of the Penal Code, defining libel, exposes the plaintiff to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause, any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their, business or occupation.”

The article, taken as a whole, does not impress my mind as charg-. ing the plaintiff with doing . anything offensive to good morals or within the definition cited.

Interlocutory judgment reversed and judgment directed for plaintiff on demurrer, with costs, with leave to defendants to withdraw demurrer and serve answer within twenty days on payment of the costs of the demurrer and of this appeal. ■  