Ivy v. Stoddard

• Decision Date: 22 November 1955
• Citation: 147 N.Y.S.2d 469
• Parties: Andrew C. IVY, Plaintiff, v. George D. STODDARD, Defendant.
• Court: New York Supreme Court

Page 469

147 N.Y.S.2d 469

Andrew C. IVY, Plaintiff, v. George D. STODDARD, Defendant.

Supreme Court, Special Term, New York County, Part III.

Nov. 22, 1955.

Frank J. Faruolo, Jr., New York City, for plaintiff.

Townley, Updike, Carter & Rodgers, New York City, for defendant, Stuart N. Updike and P. John Picinich, New York City, of counsel.

EDER, Justice.

Defendant, sued in libel, moves to dismiss the complaint upon the ground that, in the exercise of its discretion, this court should decline to take jurisdiction of this action. It is clear that this is the only ground seriously urged (despite the additional ground stated in the notice of motion that this court does not have jurisdiction of the subject of the action), as defendant's brief explicitly states his motion is based upon the doctrine of forum non conveniens.

Plaintiff is a resident of Illinois a medical doctor, head of the department of clinical science at the University of Illinois and a former vicepresident of that institution. Defendant is an educator who was, at the time of the happening of the events set forth in his allegedly libelous publication, the president of the University of Illinois and now is associated with New York University in this city. He was served in this city with the summons in this action. He states he is a non-resident of this state. Plaintiff's attorney does not dispute this, stating, upon information and belief, that defendant is now a resident of New Jersey.

The allegedly libelous statements are contained, according to the complaint, in the galley proofs of a book written by defendant, entitled 'Krebiozen, the Great Cancer Mystery'. The book was published in Boston, Massachusetts, in September, 1955, and the complaint alleges that on or about February 1, 1955 defendant caused the galley proofs to be circulated 'widely throughout the United States of America, the State of New York, including the City of New York, the State of Illinois, including the City of Chicago, and elsewhere to newspapers, radio and television commentators,' naming only Spencer Allen of a Chicago station.

The book deals with a celebrated controversy concerning the merits of 'Krebiozen', a product claimed to have been originated by a Yugoslav physician in this country on a visa and made the subject of experimentation by plaintiff as showing promise in the treatment of cancer. He became the president of the Krebiozen Research Foundation, with resultant publicity and enlistment of funds. There ensued heated discussion in Illinois medical and professional circles regarding the chemical composition of the product and the research procedures of the Foundation. Investigations were instituted by two separate committees of the University of Illinois and resolutions adopted by the executive committee of its College of Medicine, as well as by the Chicago Medical Society. Thereafter a Joint Legislative Committee of the Illinois General Assembly conducted very extensive hearings. The matter was truly a 'cause celebre' in the State of Illinois.

Thereafter defendant wrote this book, giving an account of all these events in which he had been a participant. In the controversy he had taken a position which clashed with that espoused by plaintiff, and one may say that they were on opposite sides of the question, which reged for several years. Plaintiff's present claim is that he was libeled in the galley proofs of the book, exposing him to professional suspicion, contempt and ostracism and public loathing, depicting him as both gullible and venal as well as incompetent, in being a party to the perpetration of a hoax in connection with a cancer remedy which was nonexistent.

Defendant's motion is to have this court decline jurisdiction in favor of an action to be instituted in the one place where, it is claimed, the matter could most fairly to both parties be tried--Chicago, Illinois. He marshals in support thereof the following facts: neither party is a resident of this state; all of the allegedly libelous statements concern events which occurred in Illinois; plaintiff's reputation is centered in that state and the allegedly defamatory material was circulated most widely there; the libel has no basic connection with New York; a trial in New York would inconvenience both parties (plaintiff's attorney admits that a trial here would confront plaintiff with 'problems') and put defendant to a great disadvantage, since a plaintiff in a libel suit is aided by presumptions, while this defendant, to prove affirmative defenses, would require numerous witnesses and documentary evidence located in Illinois. Defendant offers, if his motion is granted, to accept service of process in Illinois and to waive the Illinois statute of limitations, so that the libel may be tried in the proper forum.

Plaintiff has not controverted any of these factual arguments for disposition of this cause of action in Illinois rather than in this state. He takes the position that an action for a libel, a transitory tort, may be brought in every state in which it is published or circulated, every separate circulation thereof giving rise to a...