
    Helene M. O’Neill, Respondent, v. Star Company, Appellant.
    First Department,
    November 22, 1907.
    Libel — publication not changing perjury — charge that woman is sued for divorce in foreign State — grounds of divorce immaterial.
    A publication alleged to be libelous which states that the' plaintiff appeared in a criminal court in New Jersey and charged her husband with non-support, while wearing costly jewels, etc., but that the proceeding was dismissed upon. the husband’s statement that he was suing for divorce, will not support an innuendo that perjury was thereby charged against the plaintiff. This, because the fact that a wife possesses jewelry does not disprove her claim that her husband has not performed his duty of support and maintenance.
    When it is alleged that the statement that the plaintiff’s husband had instituted a suit for divorce in a foreign State was false, a demurrer to the whole complaint as failing to state a cause of action is properly overruled, for it is libelous per se to state falsely that the plaintiff’s husband is suing for divorce, even though the grounds for divorce in the jurisdiction where the suit is brought are not limited to adultery. This, because although the unchastity of plaintiff may not' be charged, the action imputes that she has been guilty of some wrong in the marital relation and tends to injure her reputation and to expose her to public contempt, obloquy or shame. •
    A defendant attacking such complaint upon demurrer as failing to state a cause of action cannot justify the publication on the ground that it was a report of a . judicial proceeding as the complaint alleges that the report was false.
    Appeal by the defendant, the Star Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff; entered in- the office of the" clerk of the county of New York on tlie 18th day of April, 1907, upon the decision of the court rendered after a trial at the New York Special Tefjn oyei'i-uling the defendant’s demurrer to the complaint tipoh the ground that the complaint does'not state facts sufficient to constitute a-cause of action. - . . -
    
      Clarence J. Shearn, for the appellant.
    
      Isaac V. Schavrien, for the respondent.
   Houghton, J.:

■The article published by defendant and set forth.in plaintiff’s complaint, to which defendant demurs, on the ground that it does not state facts sufficient to constitute a cause- of action, stated that the plaintiff appeared in a criminal court of Jersey City, in the State of New Jersey, upon a charge of non-support against, her husband, which proceeding was dismissed upon the statement of' the husband that lie had instituted an action for divorce against her in the courts, of that State. The . heading of the article'was' “ Diamonds flash as she pleads poverty. Wearing costly gems wife of Dr. O’Heill takes stand to press non-support case.” And in the body.of the article it was stated that “ the'diamonds in Mrs. O’Heill’s pars and the jeweled "brooch at her throat were mute opposing witnesses to her testimony.of poverty.”

The complaint alleges that the proceeding referred to was' instituted' by plaintiff and that she was a witness and-gave testimony thereon, but that it was untrue 'that she wore diamonds and costly gems, and' that by such false.statements the defendant intended to charge-plaintiff with willful false-swearing.

We are of the opinion that the-innuendo of perjury cannot be fairly drawn from the statement. It is true that-the likelihood of a wife becoming a public, charge is the basis of the proceeding for non-sup.port against the husband. Before instituting such a proceeding, however, the wife is not obliged to pawn her jewels nor dispose- of her unnecessary apparel. It is the duty of the husband if he be of" sufficient ability to support his wife although she may possess .unnecessary jewels and ornaments; and the fact that she does- possess them does not necessarily or fairly refute her claim, that he has not performed his legal duty óf furnishing, her proper support and maintenance and thus rendered himself liable to the quasi criminal charge of non-support.

We agree with the defendant’s contention that the article-published by it does not charge plaintiff with the crime of perjury. The demurrer, however, is to the whole complaint on the ground that it does not state a cause of action.

It is alleged that the statement in the article that Dr. O’Heill said .he had instituted a suit for divorce against his wife in the New Jersey courts” was false and untrue. In a libelous sense this statement is equivalent to a positive assertion - that plaintiff’s husband had in fact brought such an action against her.,. We are of the opinion that it is libelous per se to falsely publish of a wife that her husband has instituted an action for divorce against her. If such a statement were published of residents of a State where the only ground of divorce was adultery it would necessarily imply unchastity. . It is urged that the statutory ground of divorce in the State of New Jersey is not pleaded and that a divorce may be granted in that State for incompatibility of temperament, or some other cause not involving moral turpitude./ Even if we assume that such statutory grounds exist in that State and that the action was for such lesser cause, still the false charge that a husband has brought such an action against his wife imputes that she has been guilty of some wrong in her marital relations and tends to injure her reputation and to expose her to,public contempt,' scorn, obloquy or shame. A charge that a man had such a passion for money making that he neglected his wife is libelous per se. (Woolworth v. Star Company, 97 App. Div. 525.) It is,far more serious to state that an action for divorce has been brought upon any ground, for such action implies either neglect of marital obligations or absolute violation of them.

The publication cannot be .justified on the ground that it was a report ..of a judicial proceeding, because it is alleged that the report was false. ■

It is true that the principal charge in the complaint is that defendant by its publication accused plaintiff of perjury. But stripped of, this allegation the complaint still charges that the defendant falsely published that her husband had instituted an action for divorce against her. The-complaint, therefore, states a cause of action and the demurrer was properly overruled.

The interlocutory judgment should be affirmed, with costs,- with leave to the defendant to withdraw the demurrer and plead upon payment- of costs in this court and in the court below.

Patterson, P. J., Ingraham, McLaughlin and Soott, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court-and in the court below.  