
    Anna L. Horton, Appellant, v. Binghamton Press Company, Respondent.
    Third Department,
    November 13, 1907.
    Libel defined — publication not charging prostitution — words tending to hold plaintiff up to contempt and ridicule.
    Libel is a malicious defamation expressed either in printing or writing tending to blacken the reputation of one who is alive and to expose him to public hatred, contempt or ridicule.
    A publication which in substance states that the plaintiff resided with her daughter and husband in a certain locality, which by innuendo and by proof is shown to have been a resort for prostitutes, cannot be construed .as charging the plaintiff with prostitution, but raises a question for the jury as to whether the publication was libelous by tending to hold her up to ridicule or contempt.
    A statement that the plaintiff was the housekeeper of one who killed himself to avoid criminal prosecution does not authorize the inference that she was his mistress or a person of immoral character.
    When it is falsely charged that the plaintiff’s former husband had obtained a divorce from her, it should be left to the jury to say whether she was thereby charged with a fault or wrong which tended to hold her up to contempt and scorn in the community.
    Appeal by the plaintiff, Anna L. Horton, from an order of the Supreme Court, made at the Broomé Trial Term and entered in the office of the clerk of the county of Broome on the 3d day of January, 1907, setting aside the verdict of a jury in favor of the plaintiff for $5,000, and granting a new trial of the action.
    The action is brought to recover damages for libel. Upon the 15th day of May, 1905, the defendant published an article referring mainly to the plaintiff’s daughter. The heading of the article is as follows: “ Binghamton Girl Fiancee of Mr. Croker. Allegation of Miss Horton. She Says She Was to be Married to Him. Family Says ‘No.’ Was in Charge of FTews-Stand Here.” The parts of the article claimed to be libelous to the plaintiff are three in number;
    1. It was stated that Miss Horton resided with her parents for some time in the city of Binghamton, “in the Horton block on FTortk Chenango street, and also on Washington street.”
    2. That this plaintiff was divorced from a man named FTeal, he securing the divorce in Pennsylvania.
    3. That while this plaintiff was housekeeper for Druggist Wheeler, and after his arrest on the charge of attempting to burn his place of business in Lestersliire, he killed himself with a quick poison, which he had concealed in his clothes.
    The complaint further alleges that the article is libelous “ because the said Horton block on Fforth Chenango street is, and was at the time of said publication, and for some years prior thereto, had been a notorious resort of prostitutes; that this plaintiff never resided in said Horton block so mentioned in said publication.” It is further alleged “ that Washington street in said city of Binghamton, the place mentioned in said article, is, and was at that time and at the time referred to in said publication, a resort for prostitutes, and that the intent and meaning o£ said publication was that this plaintiff had resided in resort or resorts for prostitutes and was a prostitute herself, and that .that portion of said publication referring to her as the housekeeper of said Wheeler, was intended to and did convey the idea to the public that she had been the mistress of said Wheeler, and was a person of bad character.”
    Evidence was given to the effect that the Horton .block on Ghenango street had the reputation of being a resort for prostitutes, and that a certain portion of Washington street liad a similar reputation. It was further shown that, instead of the plaintiff’s husband having procured a divorce from her; she procured a clivorce from her husband; and it was further shown that she was not the housekeeper for the man Wheeler at the time he. committed suicide, as was alleged in the article.
    The trial court charged the jury that the only question submitted to them was, whether plaintiff was damaged by the statement that she had lived with her husband and daughter in the Horton block and on Washington street, and he left it to the jury to determine whether such a charge tended to show that the plaintiff herself was a prostitute, and if so, they were allowed to give her such damages as they thought proper. The jury returned with a verdict of $5,000. Upon a motion that the verdict be set aside, the trial court granted an order setting aside the verdict. The material portions of the otder read as follows:
    “It appearing that.the article complained of is not susceptible of the meaning ascribed to it; that considering the whole scope .and object of the article, uncliastity or other misconduct or impropriety on.the part of the plaintiff cannot be legitimately inferred from the natural meaning and import of the language used, and the court should have held, as a matter of law, that the publication was not libelous. * * * Ordered that the verdict 'herein be set aside and a new trial of the action be and the same is hereby granted because the verdict is contrary to law.” From.tiffs order setting aside the verdict the plaintiff has appealed to this court.
    
      John P. Wheeler, for the appellant.
    
      T. B. Merchant, for the respondent.
   Smith, P. J.:

Libel has been defined as a malicious defamation, expressed either in printing or writing, tending to blacken the reputation of one who is alive, and to expose him to "public hatred, contempt or ridicule. We are unable to find any warrant in the. article published for the inference by the jury that the plain tiff was charged with being a prostitute; Any inference that she was a prostitute that may be drawn from the charge that she lived in a block which was the resort of prostitutes would seem to be fully counterbalanced by the fact that she was living there with her husband and daughter. The charge that she was the housekeeper of a man who himself was a criminal, does not authorize the inference that she was his mistress, or that she was a person of immoral character.

From the article published two facts might have been submitted to the jury. First, whether the allegation that plaintiff resided in a block which was the resort of prostitutes tended in any way to hold her up to ridicule or contempt. If so, the jury might have been instructed that she was entitled to damages. Second, whether the allegation that her husband had obtained a divorce from her, which was false, did impute to her a fault or wrong which would tend to hold her up to contempt and scorn in the community. If so, the jury might have been charged that she was entitled to damages for such publication.

Whatever may he the grievance of the daughter against this defendant, we can see no other cause of complaint which this plaintiff may have, and as these questions were not submitted to the jury for their determination,- the order for a new trial was properly granted and should be affirmed, with costs.

All concurred; Sewell, J., not sitting.

Order affirmed, with costs.  