
    Alfred Nolan Martin, Appellant, v. Press Publishing Company, Respondent.
    
      Libel—innuendoes not justified by the publication do npt, where it is libelous perse, take the case from the jury — what article as to the poverty of a college professor brings him into ridicule and is libelous per se.
    Where the plaintiff in an action of libel, by innuendoes ' or allegations of that nature, has attributed meanings to the alleged libelous publication which are unsupported by its language, the court may, nevertheless, if the publication is libelous per se, submit the case to the jury.
    If the tendency of a written or published article is to -disgrace, or bring into ridicule or contempt, the person concerning whom it is written or published, the article is libelous per se.
    
    A newspaper article read as follows: “ Savant cannot make a living. Old Oxford Professor and family .in sad straits/ That the battle for existence is not Won by brains alone is illustrated in the sad plight of Prof. Alfred Nólan Martin; at Richmond Park, Staten Island. A ■ -man of extraordinary attainments in classical learning and once a professor in Oxford University, he is now in sad straits because h{s education’hampers him in earning a living. He is living with his young wife and two small children in a house which has not a single door or window inclosed. He is too poor to finish his dwelling and too proud to ask aid. His neighbors say he is starving. In his life — he is now over - fifty —Prof. Martin has been, besides an Oxford professor, a sanitary engineer, a lecturer, a . social adjutator, a school teacher and an author. Seven years ago, while with the Staten Island Health Department, he married Miss Cooper, of' Stapleton, a graduate of the New York University Law School. Then he ■ lost his place.”
    
      Held, that the article exposed the person referred to therein to public ridicule and tended to abridge his comfort and to injuriously alter his station in society and was, consequently, libelous per se.
    
    Bartlett and Jenks, JJ., dissented.
    Appeal by the plaintiff, Alfred Nolan Martin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 10th day of July, 1903, upon the dismissal of the complaint by direction of the court upon the plaintiff’s opening on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 10th day of July,- 1903, denying the plaintiff’s motion' for a new trial made upon the minutes.
    
      Ira Leo Bamberger [Saul S. Myers with him on the brief], for the appellant.
    
      James W. Gerard [Manfred W. Ehrich with him on the brief], for the respondent.
   Hooker, J.:

The plaintiff has sued for damages on account of the alleged malicious publication in the defendant’s newspaper of the following article:

“ Savant cannot make a living. Old Oxford Professor and family in sad straits. That the battle for existence is not won by brains alone is illustrated in the sad plight of Prof. Alfred Nolan Martin, at Richmond Park, Staten Island. A man of extraordinary attainments in classical learning and once a professor in Oxford University, he is now in sad straits because his education hampers him in earning a living. He is living with his young wife and two small children in a house which has not a single door or' window inclosed. He.is too poor-to finish his dwelling and too proud to ask aid. His neighbors say he is starving. In his .life —he is now over fifty — Prof. Martin has been, besides an Oxford professor, a sanitary engineer, a lecturer, a social adjutator, a school teacher and an author, Seven years- ago, while with the Staten Island Health Department, he married Miss Cooper, of Stapleton, a graduate of the New York University Law School. Then he lost his place.”

Upon the trial, before any evidence was taken, the defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This motion was granted, and. plaintiff appeals from the judgment entered thereon and from the order denying his motion for a new trial. In denying the motion.for a new trial the learned court below wrote an opinion in which he reached the conclusion that the published words were not susceptible of the particular meanings alleged in the complaint to be attributable to them, and held that, therefore, the complaint did not state a cause of action. (Martin v. Press Publishing. Co., 40 Misc. Rep. 524.) Since the writing of that opinion the Court of Appeals has decided the case of Morrison v. Smith (177 N. Y. 366), in which the recent cases in the Appellate Division, upon which the court below relied in his disposition of the motion (Brown v. Tribune Association, 74 App. Div. 359; Morse v. Press Pub. Co., 49 id. 375, and Morrison v. Smith, 83 id. 206), were distinctly overruled, and it is now the established law in this State, by reason of the recent utterance of the court of last resort, that where by innuendo or allegations of that nature the plaintiff has put meanings upon the alleged libelous publication unsupported by its language; the court may nevertheless, if the article is libelous per se, submit the case to the jury. The question, therefore, presented for our consideration is whether the article which we have quoted is libelous per se. If the question is answered in the affirmative, the judgment and order must be reversed, for the innuendos and allegations of the complaint as to the meaning to be attached to its phrases and sentences may be disregarded.

■ Somewhat more recent cases in the Court of Appeals upon the subject of what constitutes libel per se are Morey v. M. J. Association (123 N. Y. 207); Moore v. Francis (121 id. 199); and Shelby v. Sun Printing Association (38 Hun, 474; affd. on opinion below in 109 N. Y. 611). It is in those cases declared that if the tendency of a written or published article is to disgrace the plaintiff or bring him into ridicule or contempt, the matter is libelous per se. -The case of Cropp v. Tilney (3 Salk. 226) is cited twice with approval as holding that scandalous matter was not necessary to make the libel, it being enough if it induced an ill opinion to he had of the plaintiff or make him contemptible and ridiculous; it is declared that the publishing, of anything concerning another,, which tends to hinder mankind from.associating or having intercourse with him is actionable.. The language of Starkie on Slander and Libel (Am. ed. from 2d Eng. ed. of 1836, *p. 169) is substantially quoted with approval where it is said that for any false, malicious and personal implication tending to alter a party’s station in society for the worse, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts by exposing him to disgrace and ridicule,” an action will lie. We think that the words published of the plaintiff in this case are well within the' rule to which we have called attention. The publishing of one .who. has had every advantage of education, and possesses extraordinary attainments in classical learning, that he is poverty stricken, that he cannot afford .to put doors and windows into his unfinished house, and that he is starving, all because of being overeducated, holds him up before the public as ridiculous, and tends to abridge his comfort by exposing him to ridicule ;■ their tendency is to- alter his station in society for the worse. This is evidently the- view which the late General Term of the first department took of an article alleged to have been libelous per so, published by the defendant in Moffatt v. Cauldwell (3 Hun, 26). There the plaintiff was described as having been reduced from affluence to poverty, and journalistic color, so called, was injected into the article. Mr, Justice Barrett, speaking for the court, said this“ As an abstract generality it is true that.mere poverty ought not to expose any citizen to ridicule. But the proposition that ridicule is a non seqvnttir from such an imputation is not universally true. One may be so circumstanced, and the fact of his alleged misery may be so put, as to excite ridicule and nothing else. Take, for instance,' the cáse of any well known citizen of wealth ; assume his retirement from business, so as to eliminate all questions of mercantile credit. While he is still occupying a comfortable house, and perhaps entertaining in a hospitable manner, a sensational account of his misfortune appears -in a public journal, stating, as in the present case, that he ' breathes,’ but scarcely lives,’ in a ' garret; ’ that he manages, by constantly sewing for a tailor, to eke out a ' scanty pittance ’ and a wretched life; that, for years, he has lived by the sale of his personal effects, saved from the general wreck; and other minute details. Oan it be doubted that such a ' sensation ' taken in its length and breadth, and under such circumstances, would tend to expose the person in question to ridicule? Again, neither is wealth a crime. Yet a poor man may be held up to ridicule by a false and malicious account of his sudden, though perfectly honest, acquisition of fortune, coupled with an elaborate and highly colored picture of his luxurious life and splendid entertainments. It comes to this, that the question whether of no the matter is libelous, so as to be actionable, depends upon the style, scope, spirit and motive of every such publication, taken in its entirety. The inquiry is, then, into the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at.” The Appellate Division of the first department in Battersby v. Collier (24 App. Div. 89) has said that “ the imputation of poverty and squalor and alleged misery may be so put as to excite ridicule and so amount to defamation,” citing the Moffatt case. (See 18 Am. & Eng. Ency. of Law [2th ed.], 913.) The facts are well within the principle of these cases, and within the general definitions upon the subject. '

The judgment and order must be reversed.

All concurred, except Bartlett and Jenks, JJ., dissenting.

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