
    Richard Llewelyn Rees, Appellant, v. New York Herald Company, Respondent.
    First Department,
    April 20, 1906.
    Libel — words not libelous per se — leave to amend complaint granted— there is no appeal from decision, off cotirt.
    Words stating that-the plaintiff’s brother appeared in court in- San Francisco and stated that he would see that the plaintiff would return to'New York, and that the judge thereupon ordered the plaintiff released, do not charge that the plaintiff was imprisoned for crime or was-insané, and aré not libelous per se, and cannot, be made libelous by innuendo; . '
    When a complaint on such words is dismissed on demurrer' the plaintiff should have leave to amend..
    No appeal from the decision of the court, is allowed by the Code of Civil Procedure and such an appeal will he dismissed, with costs.
    Laughlin, J., dissented, with memorandum.
    Appeal by the plaintiff, Bichard Llewelyn Bees, from a judgement of the Supreme Court in "favor of the defendant, entered in' the oiEee.of" the clerk of the county of Hew York on the 20th day of Hovember, 1905, upon the decision, of the court,, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer and dismissing the complaint.
    
      Robert Goeller, for the appellant.
    
      Robert W. Candler, for the respondent.
   Ingraham, J.:

The action is for libel. The demurrer to the complaint was sustained upon the ground that the publication was not libelous joer se. The article complained of was' what purported tó be a special dispatch to the New York Herald, headed “ R. L. Reese is released,” dated “San Francisco, Cal., Thursday,” as follows: “Howard Caradoc Reese,* brother of R. Llewelyn Reese,* arrived from New York to-day and announced in Judge Morgan’s court that he was prepared to see that his brother returned to New York. The judge thereupon ordered Reese* released.”' The coinplaint, by way of •innuendo, attempted to extend this libel to a- charge that the plaintiff had been imprisoned for a crime, or was insane, but it was conceded that these innuendoes were much beyond apything that could properly be inferred from the words used, but it is claimed by the plaintiff that they should be disregarded and the, complaint held good upon the ground that the publication was libelous jper se.

Considering this publication, without, an innuendo, it seems to me quite clear that it was not libelous. There, is. no charge, but only an inference, that the plaintiff was under any restraint. The statement that the plaintiff’s brother had. arrived from New York and had announced in a court that he was. prepared to see that his brother returned to New York, and that thereupon the judge ordered the plaintiff released, was quite inconsistent with the fact that he was in custody charged with the commission of a crime, for a person charged with a crime is not released because it is stated that he intends to return to New York. Just why it was necessary . that the judge should order his release is not stated ; nor .was there anything said from which an inference could be drawn that the plaintiff had been guilty of any crime or other disgraceful or dishonest act.

No leave was awarded to the plaintiff to serve an amended -com-1 plaint, but I think he should have such,leave. The judgment appealed from should, therefore, he modified' by sustaining the demurrer, with costs in the court below, and allowing the plaintiff to serve'an amended complaint within twenty days after the service! of a copy of this order, upon the payment of such costs, and the; judgment as so modified affirmed', without costs of this appeal.

The plaintiff in his notice of appeal also appeals from the decision of the court sustaining'the demurrer. As no such appeal is allowed by the Code of Civil Procedure, the appeal from the decision should be dismissed, with costs. (Spies v. Munroe, 35 App. Div. 527.)

O’Brien, P. J., Patterson and Clarke, JJ., concurred.

Laughlin, J. (dissenting):

I dissent, on the ground that the article is libelous per se.

Judgment modified as stated in opinion, and as modified affirmed, without costs. ■ Settle order on notice.' 
      
      
        Sic.
      
     