
    Frances J. Maerlender, Appellant, v. Charles S. Porter, Respondent.
    First Department,
    June 20, 1906.
    Slander—words not slanderous — demurrer to complaint sustained — when meaning of words for jury—office of innuendo.
    The words spoken of the plaintiff alleged to be slanderous were: “ ‘ What right have you to his (Adolph Maerlender’s) key or papers ? You are not his wife.’ To which plaintiff' replied, *. I am his wife. I have my marriage certificate and can show it to you.’ To which the defendant replied, ’You could not he his wife as your husband, Hr. Waring, is still living.’ ’’
    On demurrer to the complaint,'
    
      Held, that the words neither directly nor by inference charged the plaintiff with bigamy;
    That the complaint could not be sustained on the ground that the words charged the plaintiff with meretricious relations, there being no allegation to that effect;
    That the rule that the jury may determine as a question of fact in wha,t sense words alleged to be slanderous were used applies only when the words are slanderous per se;
    
    That an innuendo cannot be used to enlarge the charge, but simply to explain the sense in which the words were used and'to apply them.
    Appeal by the plaintiff, Frances J. Maerlender, from an interlocutory judgment of the Supreme Court iti favor of the defendant, entered in the office of the clerk of the county of jSTew York on the 26th day of January, 1906, upon the decision of the court, rendered after atrial at the FTew- York Special Term, sustaining the defendant’s demurrer to the complaint herein.
    
      Dudley R. Horton, for the appellant.
    
      Joseph M. Proskauer, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages for an alleged slander. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and plaintiff appeals.

The complaint charges that at a time and place stated the defendant, in the presence of a number of persons, maliciously spoke to, of and concerning this plaintiff the false and defamatory words, as follows, to wit: ‘ What right have you to his ’ (Adolph Maerlender’s)‘key or papers? You are not his wife.’ To which plaintiff replied, ‘I am his wife. I have my marriage certificate and can show it to you.’ To which the defendant replied,‘You could not be his wife as your husband, Mr. Waring, is still living.’ ”

The complaint further charged that by the language used the defendant intended to and did accuse the plaintiff of the crime of bigamy, and by reason thereof she was injured in her reputation and damaged in the sum of $50,000, for which sum judgment was demanded.

The words set out in the complaint neither directly nor by inference charge, that the plaintiff is guilty of bigamy; on the contrary, they negative such charge. The words are: “You are not his wife.” The statement that the plaintiff was not Maerlender’s wife as her husband, Mr. Waring, was Still living cannot be tortured into a suggestion that she had committed a crime by marrying Maerlender. Indeed, there is no allegation in the complaint that the plaintiff was Maerlender’s wife or that she even was living with him, nor is there an allegation that she was not Warmg’s wife.

There is no doubt about the general rule which holds that where words are libelous per se they may be submitted to a jury to determine as a question of fact the sense in which they were used, even though that might involve a sense other than that suggested by the innuendo. (Morrison v. Smith, 177 N. Y. 366.) But this rule has no application to the question here presented because the words here used are not slanderous per se.

It is suggested that the complaint may be sustained on the ground that the words used are susceptible of charging the plaintiff with living with Maerlender, even though not married to him. But there is no force in this because there is nothing from which it can be inferred •that any such relation existed between the plaintiff and Maerlender.

In Hemmens v. Nelson (138 N. Y. 517) the slander charged was that the plaintiff was in the habit of entertaining gentlemen callers at all hours of the night. It was contended that these words necessarily charged the plaintiff with unchastity. The court held otherwise, saying: “ It is possible that a call upon a lady at a later hour than that prescribed by conventional rules, by gentlemen relatives or fi'iends may be entirely innocent. It is quite possible, also, that a jury could find that the defendant intended by the use of the words to make a defamatory charge. The intent of the defendant and the sense in .which the words were used becomes in such cases an important inquiry, not permissible at the trial without an allegation of some kind' in. the pleading that he intended to impute unchastity.”

Here the complaint contains no allegation that the defendant, by the use of the alleged slanderous words, intended to charge that the plaintiff was living with Maerlender as his wife, though not married to him. Hor can such fact be fairly implied from what is alleged any more than it can be implied that the defendant intended to charge her with committing bigamy. An innuendo cannot be used to enlarge the charge, but its purpose is simply to explain the sense in which the words were used and apply them. (Fleischmann v. Bennett, 87 N. Y. 231; Gibson v. Sun Printing & Publishing Assn., 71 App. Div. 566.)

The interlocutory judgment, therefore, should be affirmed, with costs, with leave to amend on payment of costs in this court and in, the court below.

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

Judgment affirmed, with costs, with leave to amend on payment of costs in this court and in the court below. Order filed.  