
    John D. Tracy, Respondent, v. Newsday, Inc., et al, Appellants.
    Argued October 7, 1958;
    decided January 8, 1959.
    
      Andrew L. Hughes and James W. Rodgers for appellants.
    The references to plaintiff in the article are not libelous per se. The article is not susceptible to the innuendo pleaded by plaintiff. The complaint should be dismissed. (O’Connell v. Press Pub. Co., 214 N. Y. 352; Kimmerle v. New York Evening Journal, 262 N. Y. 99; Nichols v. Item Publishers, 309 N. Y. 596; Hays v. American Defense Soc., 252 N. Y. 266; Gurtler v. Union 
      
      Parts Mfg. Co., 285 App. Div. 643, 1 N Y 2d 5; Denis v. Reynolds Tobacco Co., 279 App. Div. 78, 303 N. Y. 985; Barringer v. Sun Print. & Pub. Assn., 160 App. Div. 691; Smith v. Staten Is. Advance Co., 194 Misc. 299, 276 App. Div. 978; Julian v. American Business Consultants, 2 N Y 2d 1; Moore v. Francis, 121 N. Y. 199; Crane v. New York World Tel. Corp., 308 N. Y. 470; Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87; More v. Bennett, 48 N. Y. 472; First Nat. Bank v. Winters, 225 N. Y. 47.)
    
      Louis Jay Brecher and Maurice Freiman for respondent.
    The Appellate Division properly reversed the order and judgment of Special Term dismissing plaintiff’s complaint. The complaint states a cause of action. (Mencher v. Chesley, 297 N. Y. 94; Dall v. Time, Inc., 252 App. Div. 636; Triggs v. Sun Print. & Pub. Assn., 179 N. Y. 144; Julian v. American Business Consultants, 2 N Y 2d 1.)
   Burke, J.

One Ivan Jerome, who was required to stand trial for various sex offenses, failed to appear on the appointed day and forfeited his bail. On the following day the allegedly defamatory article appeared in the defendant’s paper, Newsday. Respondent sues for libel claiming* that the article identifies him as the man who aided Jerome “ in jumping his bail and assisted him to escape the consequences of his alleged criminal actions.” He avers that the statements are false and that as a result he has been held up to public contempt, disgrace and ridicule and has been irreparably injured in his calling as a police instructor and criminologist.

After reversing a judgment of Special Term, which dismissed the complaint, the Appellate Division certified the following question for our review: ‘ ‘ Does the complaint state a cause of action? ”

Unless we find the statements in the article to be nonlibelous as a matter of law, the question must be answered in the affirmative (Balabanoff v. Hearst Cons. Pub., 294 N. Y. 351).

. The general rule, as we stated in Nicholas v. Item Publishers (309 N. Y. 596, 600-601), is that ‘“A writing is defamatory'— that is, actionable without allegation or proof of special damage—if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number in the community, even though it may impute no moral turpitude to him And to that listing of the defamatory should he added a writing which tends to disparage a person in the way of his office, profession or trade.”

It is for the court, however, to decide whether a publication is capable of the meaning ascribed to it. (Crane v. New York World Tel. Corp., 308 N. Y. 470, 479-480; Julian v. American Business Consultants, 2 N Y 2d 1, 14.) The canons are well known that where the words are clear and plain, the court must determine whether they are libelous or nonlibelous; and whether the innuendo is necessary. (O’Connell v. Press. Pub. Corp., 214 N. Y. 352; Morrison v. Smith, 177 N. Y. 366; Seelman, Law of Libel and Slander in New York, par. 436, p. 426.) The admitted purpose of an innuendo is to explain matter that is insufficiently expressed. Its office is to point out the libelous meaning of the words used. If the article is not susceptible of a libelous meaning, then innuendo cannot make it libelous. In Fry v. Bennett (5 Sandf. 54, 65) the court stated the rule in this manner: In brief, the question which an innuendo raises, is, in all cases, a question not of fact, but of logic. It is, simply, whether the explanation given is a legitimate conclusion from the premise stated; and to determine this question, must be, in all cases, the exclusive province of the court ’ ’. (See, also, Seelman, op. cit., supra, pars. 421, 430; Hays v. American Defense Soc., 252 N. Y. 266; O’Connell v. Press Pub. Corp., supra.) The innuendo, therefore, may not enlarge upon the meaning of words .so as to convey a meaning that is not expressed (Gurtler v. Union Parts Mfg. Co., 285 App. Div. 643, 644-645, affd. 1 N Y 2d 5).

The solution of the legal question always depends on the particular phraseology used in the purported libelous statement. The article in issue here relates the details of the Jerome case from the time of the discovery of the sex offenses to his failure to appear in court for trial. The article then proceeds to give an account of Jerome’s activities just prior to his disappearance. After reporting that Jerome checked into a small hotel on the upper east side of New York City under an assumed name about six weeks prior to his disappearance, the relevant parts of the article read as follows:

1 ‘ Last Thursday a clerk saw a strange man help Jerome carrying his luggage out of the Hotel. The stranger was identified by police as John D. Tracy, a former New York City policeman who had been hired by Roekmore as an investigator to aid in Jerome’s case. * * *
“ Police were unable to learn where Jerome and Tracy took the luggage. But the next day, Jerome, Roekmore, and Tracy showed up at Murray’s New York office at 3 PM for a conference on the upcoming trial. Murray said he had been in daily phone contact with Jerome. * * *
11 After the meeting with Murray, police learned Rock-more and Jerome parted company with Tracy and left for Roekmore’s New York office. Roekmore believes that he was the last person to see Jerome. * * *
The last person to hear from Jerome before he vanished was Tracy. He said Jerome phoned him Friday evening to cancel an appointment they had made to go to court together Monday. Jerome explained he had made other arrangements.”

Standing alone these statements obviously are not defamatory. Respondent, however, relies on the innuendo pleaded in the complaint to draw a libelous meaning from the article.

Applying the cited principles of law to the construction of the statement urged on us by respondent, we are constrained to agree with Special Term that “ The pleaded innuendo is strained, unreasonable and unjustified ”. It does not explain any statement in the article, but adds an entirely new and independent thought that finds no support in the article.

The article, of course, must be read as a whole and the words and phrases must be construed together in context. (Julian v. American Business Consultants, supra.) Reading the article before us reasonably and taking the words in their natural import, we find that it is unfair to conclude that the article either states or implies anything that could subject the respondent to contempt, aversion or induce any unsavory opinion or affect him in his calling as a criminologist or police instructor. It is a chronological account of the activities of Jerome and his legal staff during a four-day period. The statements of Roekmore, one of Jerome’s attorneys, and of respondent, Tracy, given in answer to inquiries by the police and accurately reported in the paper, readily negate the interpretation the respondent seeks to read into the report. The article does not suggest that Jerome received assistance or advice in connection with his failure to appear at the trial. The fact that respondent contends that he did not assist Jerome with his luggage merely demonstrates the falsity of the statement, not that it is defamatory. Though the report may be false and probably offensive, it is not actionable. (See Nichols v. Item Publishers, 309 N. Y. 596, 601, 602, supra; Prosser on Torts [2d ed., 1955], p. 575; 1 Harper and James, Torts [1956], p. 349.) The statement that Tracy had assisted a client in carrying luggage out of a hotel several days before the trial, in the light of the further reports that ‘ ‘ Rockmore believes he was the last person to see Jerome” and “He [Tracy] said Jerome phoned him Friday evening to cancel an appointment they had made to go to court together Monday” because as “Jerome explained he had made other arrangements ”, is not susceptible of the meaning read into it by respondent.

Since there is no basis in fact nor tenable position in law to support the alleged innuendo, the article may not be regarded as defamatory of the respondent under any fair construction. The question certified, therefore, is answered in the negative and the order of the Appellate Division reversed and the judgment of Special Term reinstated.

Yak Voorhis, J. (dissenting).

In our view the news article contained in the complaint is defamatory as matter of law, or, at the least, could be found to be defamatory by a jury. It concerns the disappearance of a man named Ivan Jerome who is a fugitive from justice, having forfeited his bail instead of appearing to stand trial for certain widely publicized sex offenses. The natural meaning of this article is, as we read it, that plaintiff is charged with having helped Jerome to escape. That is the inference which would normally be drawn from this news item by the average person. After stating that Jerome had been living for about six weeks in a hotel in New York City under an assumed name, the article continues:

‘‘ Last Thursday a clerk saw a strange man help Jerome carrying his luggage out of the Hotel. The stranger was identified by police as John D. Tracy, a former New York City policeman who had been hired by Bockmore' as an investigator to aid in Jerome’s case.
“ ‘ Are you planning to check out? ’ police quoted the clerk as asking Jerome.
“ ‘ I might be called away, ’ Jerome was said to have replied, and left a small package with the clerk. Nassau detectives who examined it yesterday said it contained only a few shirts and other articles of clothing.
“ Police were unable to learn where Jerome and Tracy took the luggage. But the next day, Jerome, Bock-more, and Tracy showed up at Murray’s New York office at 3 PM for a conference on the upcoming trial. Murray said he had been in daily phone contact with Jerome. * * *
“ After the meeting with Murray, police learned, Bock-more and Jerome parted company with Tracy and left for Bockmore’s New York office. Bockmore believes he was the last person to see Jerome * * *.
“The last person to hear from Jerome before he vanished was Tracy. He said Jerome phoned him Friday evening to cancel an appointment they had made to go to court together Monday. Jerome explained he had made other arrangements.”

The majority of the court regard these words, we think, in so restricted and literal a sense as to lose sight of the meaning which the author conveys to the man in the street. Such construction is to be put upon its language as would naturally be given to it by the reading public acquainted with the parties and the subject matter (Sydney v. MacFadden Newspaper Pub. Co., 242 N. Y. 208-214). “Judges and jurors now read the words in court, as they would read them elsewhere; they no longer resort to those constructions which make that language innocent in the halls of justice, which was full of calumny when spoken or published out of door.” (Turrill v. Dolloway, 17 Wend. 426, 428, revd. on other grounds sub nom. Dolloway v. Turrill, 26 Wend. 383.)

“ The publisher of a libel cannot escape liability by veiling a calumny under artful or ambiguous phrases, or by indirectly charging that which would be slanderous, if imputed in direct and undisguised language.” (Sanderson v. Caldwell, 45 N. Y. 398, 401.)

The newsworthiness of this account did not consist in whether Jerome carried his own luggage or whether someone else carried it for him. The public was not interested in whether he tipped a bellboy to carry his bags out of the hotel, or in who the bellboy was if he did. But if mention of these trifling circumstances might be used to reveal who helped Jerome get out of the clutches of the law, and to disclose that it was a former New York City policeman who had been hired as an investigator to aid in Jerome’s case, that was news. It would have been news whether it were reported that plaintiff carried Jerome’s luggage, or drove his automobile, or did anything else connected with Jerome’s departure symbolizing that he helped Jerome to jump bail. In modern journalese carrying Jerome’s luggage out of the hotel is just a combination of words to symbolize aiding in his escape. Words are symbols at most. Unquestionably it would have been libelous to have said that plaintiff co-operated with Jerome in enabling him to elude criminal prosecution. If a newswriter can invent another phrase which means the same thing in the context in which it is used, we fail to understand on what principle it ceases to be defamatory. If this language did not mean that, the article was not worth publishing. Nobody cared who carried Jerome’s luggage if that is all that was being discussed. When the hotel clerk asked if Jerome was checking out, he replied that he might be called away. So the reader is told, in effect, that plaintiff knew that Jerome was planning not to return.

The next highlight in the article is that ‘ ‘ Police were unable to learn where Jerome and Tracy took the luggage.” This expressed that the disappearance of the luggage became a matter of concern to the police, and implied that plaintiff helped Jerome to hide it where the police could not trace it. The police would not have been interested, the reader is led to assume, unless there was something sinister about the concealment of Jerome’s equipment for traveling. The reason why the police were interested is not far to seek. It is, as anyone reading the article is readily informed, that the mystery of Jerome’s disappearance is involved in the disappearance of his luggage. The reader is told that plaintiff helped to create this mystery which baffled the police. A relationship was indicated between this and the circumstance that “ The last person to hear from Jerome before he vanished was Tracy.” The result might be different if this were an objective account of the circumstantial evidence in a criminal case, leaving the conclusion to the reader to draw who the culprit might have been. That is not what this article purports to be. The few ■ trivial circumstances that are enumerated furnish no basis for an independent analysis of what occurred, but are used as a vehicle to convey the writer’s thinly veiled conclusion that plaintiff is the guilty man who effectively helped Jerome to get away.

A charge that plaintiff had assisted the defendant in a sensational criminal case to break the law by jumping bail would have been serious enough, even if plaintiff had not been described as a former New York City policeman. Unless plaintiff conspired to do this, which, for present purposes, we must assume he did not, the article was a libel against plaintiff, couched in language which the reading public could not fail to understand. It is a literary technique by which the writer “without sneering” aims to “teach the rest to sneer” as Alexander Pope knew and said.

Even if this news item be not libelous as matter of law, as we think it was, it at least contains a basis for the innuendoes pleaded in the complaint, and under circumstances such that its construction is a question for a jury (Mencher v. Chesley, 297 N. Y. 94; Katapodis v. Brooklyn Spectator, 287 N. Y. 17; Hoeppner v. Dunkirk Print. Co., 254 N. Y. 95, 105; First Nat. Bank v. Winters, 225 N. Y. 47, 50; Morrison v. Smith, 177 N. Y. 366, 369; Moore v. Francis, 121 N. Y. 199, 202-203; Cassidy v. Gannett Co., 173 Misc. 634).

The order of the unanimous Appellate Division should be affirmed, with costs.

Judges Dye, Ftjld and Froessel concur with Judge Burke ; Judge Van Voorhis dissents in an opinion in which Chief Judge Conway and Judge Desmond concur.

Order of Appellate Division reversed and judgment of Special Term reinstated, with costs in this court and in the Appellate Division. Question certified answered in the negative.  