Katapodis v. Brooklyn Spetator, Inc.

• Decision Date: 27 November 1941
• Citation: 38 N.E.2d 112,287 N.Y. 17
• Parties: KATAPODIS et al. v. BROOKLYN SPETATOR, Inc.
• Court: New York Court of Appeals Court of Appeals

287 N.Y. 17

38 N.E.2d 112

KATAPODIS et al.

v.BROOKLYN SPETATOR, Inc.

Court of Appeals of New York.

Nov. 27, 1941.

Appeal from Supreme Court, Apellate Division, Second Department.

Action by Michael Katapodis and another against the Brooklyn Spectator, Incorporated, for libel. From an order of the Appellate Division, 261 App.Div. 967, 26 N.Y.S.2d 860, affirming an order of the Special Term denying a motion by defendant to dismiss the complaint, plaintiff by permission of the Appellate Division, 261 App.Div. 988, 27 N.Y.S.2d 472, appeals. The following question was certified: ‘Was the order denying the motion to dismiss the complaint properly made?’

Order affirmed and question certified answered in affirmative.

LEHMAN, C. J., dissenting. Charles Wilson and Edward H. Freiberger, both of Brooklyn, for appellant.

Edmund F. Lamb, of New York City, for respondents.

LOUGHRAN, Judge.

Whether the complaint in this action states facts sufficient to constitute a cause of action for libel is the issue to be determined.

After reciting that the plaintiffs are residents of the borough of Brooklyn, city of New York, and that the defendant publishes a newspaper in that borough, the complaint goes on to allege:

‘4. That on the 4th day of October, 1940, the defendant composed for publication and published concerning the plaintiffs in the said newspaper, a certain article containing the false and defamatory matter following, to wit:

“Pauper's Grave for Poor Child ”By Buster Schneider

“Unless financial aid is forthcoming immediately, the body of a 4-year old boy, who was run over Tuesday will be interred in Potter's Field, burying ground of the homeless, friendless and penniless, who die or are killed in N. Y. C. The parents of his youngster are in dire financial straits, and at this writing have no alternative but to let their son go to his final rest in a pauper's grave.

“Tuesday morning, a truck, operated by John Queeno, 34, of 144 Bay 50 th St. ran over the child while he was riding his tricycle on 101st St. and Jackson Ct., which is a street under construction.

“Detective Angelo Ruocco arrested Queeno who was held in $1,000 bail by Judge Masterson, Wednesday for a hearing on Oct. 10.'

5. That the child referred to in the aforesaid publication was the infant son of the plaintiffs herein.

6. That the matters stated in said publication as to the financial condition of the plaitiffs were wholly false.'

We take the foregoing allegations to say that the only part of the article that was true was the statement that the child of the plaintiffs had been killed in the circumstances therein set forth. No innuendo is pleaded. Hence the question is: Are the false words of the publication on the face of them reasonably capable of a defamatory meaning? If so, the colloquium is sufficient. Corr v. Sun Printing & Publishing Ass'n, 177 N.Y. 131, 135,69 N.E. 288; Rules of Civil Practice, rule 96.

Defendant's argument is that the false words imputed to the plaintiffs nothing but poverty and that such an imputation could not without more expose the plaintiffs to ridicule. From that point of view the question of law is restated in this single sentence: Without a suggestion in the article to the discredit of the plaintiffs, how could any just and right-thinking reader entertain any feeling except sympathy for them? But this is a full solution of the case only if the law is that a written publication can never be a libel when its only effect is to make a person an object of pity. We are not apprised of any case in this court in which that matter has been examined upon principle.

In Moffatt v. Cauldwell, 3 Hun. 26, a newspaper article which described the plaintiffs as relatives of wealthy persons, but as living in abject poverty, was held to be actionable. The court said: ‘As an abstract generality, it is true that mere poverty ought not to expose any citizen to ridicule. But the proposition that ridicule is a non sequitur from such an imputation, is not universally true. One may be so circumstanced, and the fact of hsi alleged misery may be so put, as to excite ridicule and nothing else. * * * It comes to this, that the question, whether or no the matter is libelous, so as to be actionable, depends upon the style, scope, spirit and motive of every such publication, taken in its entirety. The inquiry is, then, into the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at.’ Per Barrett, J., at pages 29, 30 of 3 Hun. True, the court in the Moffatt case used the word ‘ridicule.’ None the less for that, however, the reasoning of Barrett, J., conveys the idea that the derogatory purport of the publication there in...