
    Esther N. Gracy, Respondent, v. Sun Printing and Publishing Association, Appellant.
    First Department,
    February 18, 1916.
    Libel — sufficiency of complaint — when publication actionable per se,
    A complaint in an action for libel, setting forth an article alleged to have been maliciously composed and published by the defendant concerning the plaintiff, which in effect stated that a nurse girl employed by the plaintiff had been intimidated into making a confession that she had stolen a ring, resulting in her arrest, and that the next day the plaintiff found the ring in a place in which she had put it and had forgotten about it, but which did not allege who made the charge against the girl or who obtained the confession, is insufficient, unless these facts are shown by innuendo to have been written of the plaintiff.
    Any matter published concerning a person which holds him up to reproach scorn or ridicule, or imputes to him bad, actions or vicious principles, diminishes his respectability and hence his comfort and enjoyment in the community, and is actionable per se.
    
    Appeal by the defendant, Sun Printing and Publishing Association, 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 the 21st day of October, 1915, overruling a demurrer to the complaint.
    
      James M. Beck, for the appellant.
    
      Bradford Butler, for the respondent.
   Page, J.:

The complaint states that the defendant maliciously composed and published concerning the plaintiff in the Evening Sun the following article:

“Innocent Girl Held in Jail—Montclair Society Women Lead Eight for Release.

“ Several prominent society women of Montclair, stirred by continued confinement of 12-year-old Rachel Anderson in the Newark jail, after the charge on which she was arrested had been disproved, instituted action today to bring about her release, and to further an investigation into certain rumors as to the strange manner in which the girl was forced into a confession.

“Rachel was a nurse girl employed by Mrs. Leonard E. Gracy, wife of a wealthy Manhattan business man who has a beautiful home at 53 Brookfield road, Montclair. Last Friday Mrs. Gracy missed a diamond ring valued at $1,000. On Tuesday, following her confession that she had stolen the ring, the girl was arrested and brought before Recorder Tost, who sent her to the Newark jail. The next day Mrs. Gracy found the ring in a place where she had put it and had forgotten about it.

“ When first accused of the theft the young girl denied any knowledge of it. Later she said she had taken it and given it to a little Italian girl. She changed this story afterward, saying that she had given it to her mother, and when this was disproved said that she had lost it.

“Several of the most prominent society women of Montclair were wrought up by stories of the manner in which the girl is alleged to have been intimidated into the confession that brought about her arrest. A delegation headed by Mrs. Hettie H. Patterson, president of the Altruist Society, went to Newark to engage the services of Attorney Frank M. McDermott, who was instructed to bring about the nurse girl’s release and to institute such other proceedings as might seem advisable.

“The police say they have not received official notification that the property has been recovered.”

The complaint then alleges that the statements in the article that: “The next day Mrs. Gracy (meaning plaintiff) found the ring in a place where she had put it and had forgotten about it ” and “the charge on which she (meaning Rachel Anderson) was arrested had been disproved ” are wholly false and plaintiff has been thereby injured in her reputation and persons have declined to associate or deal with her and have sent her scurrilous communications, all to her damage in $10,000.

The defendant has demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, which demurrer was overruled at Special Term.

It is well settled that any matter published concerning a person which holds him up to reproach, scorn or ridicule, or imputes to him bad actions or vicious principles diminishes his respectability and hence his comfort and enjoyment in the community and is actionable per se. (Morrison v. Smith, 177 N. Y. 366; Snyder v. N. Y. Press Co., Ltd., 137 App. Div. 291; Triggs v. Sun Printing & Pub. Assn., 179 N. Y. 144.) Had this article stated that the plaintiff forced a confession from the nurse girl and made the charge on which she was arrested and confined, then the false statement would be libelous jper se that the plaintiff had the next day found the ring where she had put it and forgotten about it and that the charge had been disproved, but nevertheless the girl was still held in jail. The article does not state who made the charge, nor who obtained the confession. Unless this is shown by innuendo to have been written of the plaintiff, she has no right of action.

The interlocutory judgment is reversed, with costs, and the demurrer sustained, with costs, with leave, however, to the plaintiff to serve an amended complaint within ten days from service of a copy of the order to be entered hereon, together with notice of entry. In default of the service of an amended complaint defendant may enter final judgment dismissing the complaint, with costs.

Olarke, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  