Everett v. Gross
| Citation | 254 N.Y.S.2d 561,22 A.D.2d 257 |
| Parties | Marjorie Lindheimer EVERETT and Chicago Thoroughbred Enterprises, Inc., Plaintiffs-Respondents, v. Milton GROSS and New York Post Corporation, Defendants-Appellants. |
| Decision Date | 17 December 1964 |
| Court | New York Supreme Court Appellate Division |
Morris B. Abram, New York City, of counsel (Paul, Weiss, Rifkind, Wharton & Garrison, New York City, attorneys), for appellants.
James J. Hagan, New York City, of counsel (William J. Manning and Walter J. Josiah, Jr., New York City, with him on the brief, Simpson, Thacher & Bartlett, New York City, attorneys), for respondents.
Before BOTEIN, P. J., and RABIN, McNALLY, EAGER and STEUER, JJ.
The complaint is in libel and stems from a column written by the individual defendant and published in the New York Post. Briefly, the article describes an incident following the running of a horse race at Arlington Park in Arlington Heights, Illinois. It is stated in the article that, following the race, a claim of foul was made to the stewards. The stewards tentatively decided to uphold the claim by a vote of two to one, subject to a review of the films of the race. While the stewards were so engaged the article states that the individual plaintiff, Mrs. Everett, came into the stewards' room and informed them that the result of the race would have to stand, that is, the claim of foul must be disallowed. And she threatened that any steward who voted to uphold the claim would lose his position. It is further stated that one steward who voted to uphold the claim resigned forthwith.
The complaint contains two causes of action, the first on behalf of Mrs. Everett, and the second on behalf of Chicago Thoroughbred Enterprises, Inc. The defendants have moved to dismiss the second cause of action for a failure to state sufficient facts. In addition to setting out the article and alleging its falsity, the complaint states that the corporate plaintiff, through a division known as the Arlington Park Jockey Club, owns and operates the race track at Arlington Heights. It also alleges that Mrs. Everett is the president, a director and the majority stockholder of the corporate plaintiff and the head of Arlington Park Jockey Club. No special damages are pleaded.
The article complained of does not mention the corporate plaintiff, nor does it give any indication for whom, if anyone besides herself, Mrs. Everett was acting at the time. The test of the effect of a publication is what it means to the ordinary reader (Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257, 259; Sydney v. MacFadden Newspaper Pub. Corp., 242 N.Y. 208, 214, 151 N.E. 209, 210, 44 A.L.R. 1419; 1 Seelman, Law of Libel in New York, pars. 162-164, pp. 201-205). In order to form any adverse opinion of the corporate plaintiff a reader would have to be aware of several things dehors the publication complained of. He would first have to know that the corporate plaintiff owns and operates Arlington Park race track. This is not a fact lightly to be assumed, as the track is apparently operated under a different name and the knowledge would have to embrace the fact that the Jockey Club was a unit of the operator. The reader would also have to be aware of Mrs. Everett's connection with the corporate plaintiff. But, more important than either of these considerations, he would have to assume that Mrs. Everett was at the time either acting in her capacity as a corporate officer or...
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