
    George Garby, Respondent, v. James Gordon Bennett, Appellant.
    Libel— whether a publication capable of two constructions is defamatory or not must be determined by the jury— effect of a failure to use innuendoes.
    
    In an action for libel based upon a publication which is capable of two constructions, one that it is a fair report of legislative proceedings, and the other that it is defamatory of the plaintiff, the sense in which the words were intended and understood is to be determined by the jury.
    
      The failure of the complaint to point out, by means of innuendoes, the inj urious meaning ascribed to the publication by the plaintiff does not render it demurrable.
    Goodrich, P. J., dissented upon the ground that the publication was not ambiguous.
    Appeal dj the defendant, James Gordon Bennett, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the county of Richmond on the 29th day of October, 1898, on the verdict of a jury for $2,000, and also from.so much of an order .entered in said clerk’s office on the 31st day of-October, 1898, as denies the defendant’s motion for a new trial made upon the minutes.
    
      Flamen B. Candler, for the appellant.
    
      John S. Davenport, for the respondent.
   Willard Bartlett, J.:

Only certain portions of the article complained of are libelous on their face. As to these, the defendant offered evidence from which the jury might have found that they constituted a fair report of legislative proceedings. Being capable of this view, the jury should have been allowed to determine whether -as matter of fact these parts of the publication merely gave a fair narrative of what had actually happened in the Legislature, or went further, and, therefore, made the publisher liable for their defamatory character. ■

As to the remainder of the article, I think it is susceptible of different meanings, one libelous, and the other not imputing any wrongdoing to the plaintiff.

Where the language of a publication alleged to be libelous is ambigudus -and capable of two -constructions, one defamatory and the other innocent; it is for the jury to determine in which sense the words were intended and understood. (Hayes v. Ball, 72 N. Y. 418, 421.)

While under such circumstances it is usual by means of innuendoes in the complaint to point out the injurious meaning ascribed to the publication by the plaintiff, a failure to do so does not render the complaint had on demurrer. (Wesley v. Bennett, 5 Abb. Pr. 498, N. Y. Super. Ct. Gen. Term.)

It follows that the question of the interpretation of the ambiguous portions of the article should have been left to the jury, so that they might say what the publisher meant to have understood, as the meaning of the language, by the readers of the newspaper in which it appeared. Instead of thus allowing the jury to pass upon the true construction of the publication, the learned trial judge instructed them as a matter of law that it was false and libelous. This also seems to me to have been error which requires a reversal of the judgment.

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

Goodrich, P. J.

(dissenting):

I cannot assent to the proposition that the articles in question are susceptible of any other meaning than that they imputed wrongdoing to the plaintiff in his official capacity as. a member of the Assembly. Reading them together, they charge him with being one of ten gas acrobats who had changed their votes on the gas bill, from corrupt motives and for a price offered by the gas lobby. If this is not libelous per se, it is difficult to frame a libel.

Judgment and order reversed and new trial granted, costs to abide the event.  