
    Vito Marcantonio, Respondent, v. New York World-Telegram Corporation, Appellant.
    First Department,
    June 13, 1950.
    
      
      Harry H. Van Aken of counsel (Macdonald De Witt, C. Coudert Nast and William E. Flannery with him on the brief; De Witt, Van Aken & Nast, attorneys), for appellant.
    
      Herman Rosenfeld of counsel (William L. Standard, attorney), for respondent.
   Per Curiam.

The newspaper article alleged in the complaint does not sustain the pleaded innuendoes that it charges plaintiff, a member of Congress, with having been in association with criminals or criminal activities, that he was lending his political office to the accomplishment of criminal ends, or that his political activities were directed to criminal and unlawful ends and purposes or in aid of persons engaged in criminal activities. The statement in the article that money was pledged for plaintiff’s mayoralty campaign at a meeting attended by a night club operator, a Harlem racket chief, and plaintiff, himself, does not charge that these persons contributed nor that he accepted their assistance or furthered their activities. The same is true of the further statement that the racket boys would like to help plaintiff pull votes away from Mayor O’Dwyer and hope for the election of Newbold Morris. The article alleged is not libelous per se.

The order appealed from should be reversed and defendant’s motion to dismiss the complaint as insufficient in law should be granted, with $10 costs and printing disbursements.

Shientag, J.

(dissenting). I dissent upon the ground that the words used are capable of the defamatory meaning ascribed to them and, if there is some other meaning which they are also capable of, it is a question of fact to be tried which meaning they did convey under all the circumstances of the publication in question (Pollock on Law of Torts [13th ed.], pp. 257-258), “ In an action for defamation, if the application or meaning of the words is ambiguous, or the sense in which they were used is uncertain, and they are capable of a construction which would make them actionable, although at the same time an innocent sense can be attributed to them, it is for the jury to determine upon all the circumstances, whether they were applied to the plaintiff, and in what sense they were used ” (Sanderson v. Caldwell, 45 N. Y. 398, 401). “ If the language is unambiguous, whether it is actionable becomes a question of law; but if ambiguous and capable of an innocent, as well as of a disgraceful meaning, the question becomes one for the jury to settle. When the defamatory meaning is not apparent, innuendo is necessary. If the words are incapable of the meaning ascribed to them by the innuendo and are, prima facie, not actionable, the complaint should be dismissed. If they are capable of such a meaning, however improbable it may appear, the jury should say whether they may be so understood ” (Morrison v. Smith, 177 N. Y. 366, 369; see, also, First Nat, Bank v. Winters, 225 N. Y. 47, 50),

In view of the foregoing authorities, the complaint is sufficient in law upon its face and the order below denying the motion to dismiss the complaint should be affirmed.

Peck, P. J., Cohn and Van Voorhis, JJ., concur in Per Curiamopinion; Shientag, J., dissents and votes to affirm in opinion in which Callahan, J., concurs.

Order reversed, with $10 costs and printing disbursements to the appellant, the motion granted and judgment is directed to be entered dismissing the complaint herein, ■ with costs.  