Gross v. Cantor

• Decision Date: 03 March 1936
• Citation: 270 N.Y. 93,200 N.E. 592
• Parties: GROSS v. CANTOR et al.
• Court: New York Court of Appeals Court of Appeals

270 N.Y. 93

200 N.E. 592

GROSS

v.CANTOR et al.

Court of Appeals of New York.

March 3, 1936.

Action by Ben S. Gross against Eddie Cantor and others. From a judgment, entered February 9, 1935, upon an order of the Appellate Division of the Supreme Court, which affirmed an order of Special Term granting a motion by defendants for dismissal of the complaint on the ground that it did not set forth facts constituting a cause of action (243 App.Div. 625 277 N.Y.S. 980), plaintiff appeals.

Judgments reversed, and motion to dismiss complaint denied.

Appeal from Supreme Court, Appellate Division, Second department.

Benjamin C. Ribman, of New York City, for appellant.

Thomas E. McEntegart, of New York City, for respondents.

LOUGHRAN, Judge.

The question presented by this appeal is whether the complaint is sufficient as the statement of a cause of action for a libel upon the individual plaintiff. He alleges that the moving defendants printed and circulated in a magazine called ‘Radio Guide’ the following article:

‘Cantor Bares Feud of Critics.

‘Eddie Cantor, hailed by many admirers as America's foremost comedian, has a pet feud. It involves all save one of the radio editors in New York City. Eddie carefully excludes this editor as being the only radio critic entitled to his job. Interest in the feud is intensified by the fact that Cantor does not name the man he excepts.

‘At all the other radio editors and columnists of New York, the comedian hurls his lance of vitriolic criticism. It is a gesture of fearlessness. Few leaders in the entertainment world have the courage to attack the critics and the editors of the metropolis.

‘Cantor has enlisted the aid of Radio Guide in presenting the facts of the feud to the public. He is eager to make especially clear his friendliness for all the radio editors outside New York.

‘The story is told in a telegram sent by Cantor to Radio Guide. The telegram follows:

“Editor, Radio Guide: En route to California from New York several newspaper friends have asked me about the feud between the radio editors and myself.

“I have always had the friendlies relationship with the radio editors outside New York City. They have criticized my work but theirs honest criticism with nothing personal behind it. I have a great respect for their sincerity and judgment.

“However, I shall continue to fight those New York radio editors who are expertsat logrolling, who use their columns for delving into personalities that have nothing to do with radio and whose various rackets are a disgrace to the newspaper profession.

“There is but one person writing on radio in New York City who has the necessary background, dignity and honesty of purpose.

“Would appreciate your printing this in Radio Guide where it may be seen by radio editors throughout the country. Best wishes.

“Eddie Cantor.”

By way of inducement and colloquia, the pleader states these extrinsic facts: There is a class of newspaper writers known as ‘radio editors' who review radio performances and programs; the leading newspapers in the city of New York employ about twelve radio editors; in the public mind this group includes the plaintiff; prior to the publication, the defendant Cantor had publicly specified the ‘one person’ to whom he referred; the plaintiff is not that person; knowing all this, the moving defendants aimed the article especially at the plaintiff, and its defamatory content was commonly understood as an imputation against him personally. An innuendo follows, pointing to the plaintiff as a particular person to whom the words in fact related.

We think the...