
    August H. Gutkes, Plaintiff, v. The New York Produce Exchange et al., Defendants.
    (Supreme Court, Kings Special Term for Trials,
    January, 1905.)
    Libel and slander — Allegation as to meaning of words complained of — Notice posted by stock exchange concerning plaintiff — Demurrers.
    Where words are susceptible of different meanings, one or more of them not defamatory, the complaint must single out and allege the meaning complained of.
    A written notice posted by the New York Produce Exchange upon its bulletin board in its building to the effect that, pursuant to a provision of its by-laws, the plaintiff, naming him', was prohibited representation on the floor of the Exchange during the pleasure of its board of managers and that any member of the Exchange who, with knowledge of such prohibition, should represent or transact business for or on behalf of said plaintiff, naming him, after said notice had been posted five days, should be deemed guilty of willful violation of the by-laws and subject to the penalty therein prescribed, is not necessarily defamatory and, in the absence of an allegation as to the meaning the defendant intended to convey, or the charge it intended to make, against the plaintiff, his complaint is demurrable upon the ground that it does not state facts sufficient to constitute a cause of action.
    The complaint stated a cause of action against the defendant corporation for publishing the above-mentioned notice and alleged that it did so because the individual defendants represented to it that the plaintiff refused to pay them “ all obligations claimed to be' due by plaintiff ” to them and that the individual defendants thereby intended to brand the plaintiff as a person who did not pay his debts and to impute to him insolvency and prevent him from trading on credit, but there was no allegation that they requested or procured the notice to be posted. Held, that demurrers by the individual defendants on the grounds, (1), that two causes of action had been improperly united and, (2), that the complaint did not state facts sufficient to constitute a cause of action, should be sustained.
    Triad of issues of law raised by demurrers to the complaint.
    J. S. Ross for plaintiff.
    Abel E. Blackmar and Alfred Opdyke for defendants.
   Gaynor, J.:

Leaving out all adjectives and hard words, and summarizing much verbiage, the complaint alleges that the defendant corporation, The Eew York Produce Exchange, posted on its bulletin board in its building where merchants and traders congregate to do business, the following written notice concerning the plaintiff, a produce merchant, viz. :

“ Pursuant to the provisions of Section 36 of the by-laws, A. H. Gutkes of 90 Van Dyck Street, Brooklyn, is prohibited representation on the floor of the Exchange during the pleasure of the Board of Managers.

“Any member of the Exchange who shall with knowledge of such prohibition, represent or transact business for or on behalf of said A. II. Gutkes after this notice shall have been posted during five days, shall be deemed guilty of willful violation of the by-laws, and subject to the penalties prescribed in Section 36.”

It then alleges that the said defendant posted such notice because the individual defendants represented to it that the plaintiff refused to pay them “ all obligations claimed to be due by plaintiff” to them, and that the individual defendants thereby intended to brand the plaintiff as a person who did not pay his debts, and to impute to him insolvency, and prevent him from trading on credit.

The individual defendants demur on two grounds, first, that two causes of action have been improperly united, and second, that the complaint does not state facts sufficient to constitute a cause of action. The defendant corporation demurs on the second ground only.

1. The complaint states two causes of action, i. e., one against the defendant corporation for publishing the written' notice, and one against the individual defendants for what they stated to the corporation. There is no allegation that they requested or procured the notice to be posted. If the defendant corporation did it because of what the individual defendants stated to it, that does not make the-posting their act, any more than any other action the corporation might have» taken on such information would be theirs. Nor is the publisher of a slander or libel liable for its repetition by another.

2. No cause of action is alleged against the defendant corporation. The notice posted is not necessarily defamatory. It does not charge the plaintiff with insolvency or failure to pay his debts, or with anything. It could have been posted for other reasons. The meaning the said defendant intended to convey, or the charge it intended to make against the plaintiff, is not alleged. If the notice conveyed a defamatory meaning, the plaintiff should have alleged that meaning. It is a familiar rule of pleading that where words are susceptible of different meanings, one or more of them not defamatory, the complaint must single out and allege the meaning complained of (Smid v. Bernard, 31 Misc. Rep. 35 ; Taylor v. Wallace, 31 id. 393).

The claim that the complaint is also insufficient for not stating the “ falsity ” of the alleged defamatory matter is not good. That is not a necessary allegation (Hunt v. Bennett, 19 N. Y. 176). Indeed, as no meaning is given by the plaintiff, an allegation of falsity would have been meaningless. But that is aside from the case.

Both demurrers are sustained.  