
    Emilie Snyder, Appellant, v. The New York Press Company, Limited, Respondent.
    First Department,
    March 11, 1910.
    • Libel—publication holding woman up to ridicule.
    A publication falsely stating that the plaintiff, a woman, was served with process while in a bath tub and detailing various circumstances connected with the alleged event calculated to hold her up to public ridicule and to lower her in the estimation of the community is libelous, although it make no charge of immoral conduct or character.
    Appeal by the plaintiff, Emilie Snyder, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26tli day of November; 1909, upon the decisión of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint.
    -The plaintiff sued for the publication by the defendant of the following article concerning her:
    “ Court Hears How Woman in Bath Tub Got Subpcena.
    “Process Server Just Walked in to Hand Papers to Her.
    “ Her Screams Drove Him Out.
    “ Naive Maid Responsible for Embarrassing Situation of Realty Man’s Wife..
    “An Irish maid’s mistake, it was brought out yesterday in the City Court before Judge La Fetra, put Mrs. Herbert R. Snyder, wife of a realty man of No. 312 West 109th Street, man embarrassing situation several days ago.. A process server was permitted to enter Mrs. Snyder’s bathroom when she was in the tub. That enabled him to serve on her a subpcena in supplementary proceedings on a judgment of $40 obtained by butcher against her husband.
    “ 6 That horrid process server,’ Mi’S. Snyder blushingly explained in court, ‘walked right into my bathroom; to serve his subpcena, and I was in the bathtub.’ -
    “ The case before the court was to have been a motion to have the subpcena vacated on the ground it was impossible for the process server to identify Mrs. Snyder in' the circumstances. It was shown that the man had retreated when he saw Mrs. Snyder in the tub because she started to scream. He served the paper, however,' by giving it to a hand which was extended from the bathroom. The fact that the hand was attached to a naked arm led the manto believe he was giving the paper to the woman whom he surprised in the tub, and he was sure that woman was Mrs. Snyder. Thompson & Ballantine of No; 27 William Street, counsel for Emil Oppenheimer, the judgment creditor, refused to tell the name of the process server, suggesting it would be harmful to the. man in his business if his identity were revealed.
    “As the lawyers told the story to Judge La Fetra, the subpcena server. reached the Snyder home shortly after Snyder had gone down town to business. Mrs. Snyder was taking her morning bath when the bell rang. Her Irish maid, mentioned in court only as Bridget, opened the door. The process server walked into the flat, and insisted on seeing Mrs. Snyder.
    “ ‘ But, sir,’ the girl said, ‘ She’s in the bathtub.’ ‘ That doesn’t make any difference,’ the man replied, ‘ I’m sure she’s very anxious to see me.’
    “ The maid took him at his word, led him to the bathroom and threw open the door. The man stepped in ánd then saw his predicament. Mrs. Snyder impressed it on him further by screaming excitedly. The man dodged out of the room, pulling the door to after him, but insisted that Mrs. Snyder come out of the tub and get the paper. She was only too willing to do that, so she could slam the door and lock it.”
    She alleged said article to be wholly false.
    
      Thomas Q. Prioleau, for the appellant.
    
      E. Mortimer Boyle, for the respondent.
   Miller, J.:

It seems to us that the article complained of has a direct tendency to subject the plaintiff to unfavorable comment, to diminish her respectability, to abridge her comfort and enjoyment, and to expose her to public ridicule, such as provokes contempt, not merely such as may be sportive and thoughtless. (See Lamberti v. Sun Printing & Publishing Assn., 111 App. Div. 437.) The point of the story, if it have a point, seems to be the ability of the process server to identify her. She is made to appear in court and relate the story of the service of the subpoena upon her in a proceeding to test that question, which the article says was to have been a motion to have the subpoena vacated on the ground it was impossible for the process server to identify Mrs. Snyder in the circumstances.” Whether any covert meaning was intended by the use of the past tense is not plain. The article stated that the process server was sure that the woman he surprised was the plaintiff. Her maid is said to have admitted a man to her bathroom while she was taking a bath upon his assurance that she was very anxious to see him. The sting of that is not taken out by calling it the mistake of a “ naive maid,” nor by saying that the plaintiff resented the intrusion. Servants in' many ways reflect -the character of their master or mistress. An article may be libelous, though it does not impute immoral conduct. The whole tenor of this article is to ridicule the plaintiff. It has a direct'tendency to lower her in the estimation of the community, though it may not charge immoral conduct or impute immoral character.

It is unnecessary to cite authority for the general definition of libel, but see Triggs v. Sun Printing & Publishing Assn. (179 N. Y. 144) and cases cited. ■

The defendant contends that the article is innocent and belongs to a class generally recognized as having a “ news value.” It is difficult to perceive what news value it can have, and impossible to discover its literary value. If newspapers see fit to give their readers fiction as news, they do so at their peril. Such an article should not be held harmless unless in the language of Judge Martin, in the Triggs case, it is perfectly manifest ” that it is.

The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with the usual leave to plead over on payment of costs.

Ingraham, P. J., Lahghlin, Clarice and Scott, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.  