
    Albert J. Davis, Appellant, v. Helen M. Kelly, Respondent.
    First Department,
    April 7, 1916.
    Libel — slander — sufficiency of complaint —test of sufficiency — damages.
    A complaint in the first count alleged a cause of action for slander, and in the second one for libel for publishing the utterances complained of as slanderous, but with appropriate innuendoes charging that the words were used in a sense specified which would make them libelous per se. The article charged, among other things, that the plaintiff followed the defendant and her daughter to a certain place, and that “ when he had left, a diamond pin she had was gone,” and, together with appropriate innuendoes, it may have been understood by readers of ordinary intelligence that the plaintiff stole the pin, and a demurrer to the first cause of action should be overruled.
    Where special damages are not alleged, no damages are recoverable, unless the article is libelous per se.
    
    In such a case, the test of the sufficiency of the complaint is whether the article is libelous per se without any innuendo, or is susceptible of a meaning ascribed by innuendo, which would render it libelous per se, and in the latter case it is for the jury to determine whether the words were used and would be understood by readers of average intelligence in the libelous sense.
    Appeal by the plaintiff, Albert J. Davis, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of January, 1916, sustaining a demurrer to the first cause of action in the complaint.
    
      Otho 8. Bowling, for the appellant.
    
      David C. Hirsch [John F. McIntyre with him on the brief], for the respondent.
   Laüdhlin, J.:

The plaintiff in the first count of his complaint alleges a cause of action for slander, and in the second one for libel, for publishing in the New York Tribune the utterances complained of as slanderous, but with appropriate innuendoes charging that the words were used in a sense specified which would make them libelous per se. In Maerlender v. Porter (114 App. Div. 180) and Hemmens v. Nelson (138 N. Y. 517), upon which respondent largely relies, there was no innuendo in the complaints ascribing a slanderous meaning to the words.

The article with the innuendoes in parentheses is as follows: This summer (meaning and intending the summer of 1915) he (meaning and intending plaintiff) pursued us (meaning and intending defendant and one Eugenia Kelly, her daughter) to Mackinac Island, where we were happy. We had forgotten all about the unpleasant things that had happened, and we were just good chums, when suddenly I noticed a change. A few days later I learned the answer. Davis (meaning and intending plaintiff) under the name of Powell, was on the island (meaning and intending said Mackinac Island) with another man and two women. He had trailed Eugenia out there (meaning and intending that plaintiff, covertly and furtively, in bad conscience and with evil intent, had followed defendant’s said daughter to said Mackinac Island). When he (meaning and intending plaintiff) had left, a diamond pin she (meaning and intending defendant’s said daughter) had, was gone (meaning and intending thereby that the disappearance of defendant’s daughter’s said pin was connected with and resulted from plaintiff’s presence on said island; that plaintiff had taken said pin; that plaintiff had taken said pin under circumstances indicating, on his part, dishonesty and moral turpitude; that plaintiff had stolen said pin; and that plaintiff had committed the crime of larceny).”

Special damages are not alleged, and, therefore, no damages are recoverable unless the article is libelous per se. (Willis v. Eclipse Mfg. Co., 81 App. Div. 591.) In such case the test of the sufficiency of the complaint is whether the article is libelous per se without any innuendo, or is susceptible of a meaning ascribed by innuendo which would render it libelous per se, and in the latter case it would be for the jury to determine whether the words were used and would be understood by readers of average intelligence in the libelous sense. (Morrison v. Smith, 177 N. Y. 366; Demos v. N. Y. Evening Journal Pub. Co., 210 id. 13; Turton v. N. Y. Recorder Co., 144 id. 144; Hemmens v. Nelson, supra; Van Heusen v. Argenteau, 194 N. Y. 309.) Applying these rules it is manífest that the article, if not libelous without the innuendo, is susceptible of the meaning ascribed in the innuendo, for it may have been understood by readers of ordinary intelligence as charging that plaintiff stole the pin.

It follows that the interlocutory judgment must be reversed, with costs, and the demurrer overruled, with costs, but with leave to defendant to answer on payment of the costs of the appeal and of the demurrer.

Clarke, P. J., Scott, Page and Davis, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.  