Means v. MacFadden Publications
| Decision Date | 12 January 1939 |
| Citation | 25 F. Supp. 993 |
| Parties | MEANS v. MacFADDEN PUBLICATIONS, Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Hastings & Aranow, of New York City (Sydney A. Hellenbrand, of New York City, of counsel), for plaintiff.
Mayer C. Goldman, of New York City (Mayer C. Goldman and Herbert M. Karp, both of New York City, of counsel), for defendant MacFadden Publications, Inc.
This is an action for libel. The defendant MacFadden Publications, Inc., was served with the summons and complaint herein on April 25, 1938. The defendant May Dixon Thacker has not been served with process in this action.
The defendant MacFadden Publications, Inc., has answered, and issue between the plaintiff and that defendant has been joined.
The amended complaint contains nine separate and distinct causes of action, alleging nine different publications in the magazine "Liberty", which the plaintiff contends are libelous as to her. In each cause of action she asks for damages in the sum of $25,000.
This motion on the part of the defendant is addressed to the first three causes of action and is a motion under Rule 56 of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S. C.A. following section 723c, for judgment, dismissing the said first three causes of action on the ground that they are barred by the Statute of Limitations as contained in the Civil Practice Act of the State of New York (Sec. 51, Subd. 3).
This defense is set forth in the answer to the amended complaint as follows:
In the amended complaint the plaintiff claims the libels were published by the defendant as follows:
First cause of action—on or about April 17, 1937.
Second cause of action—on or about April 24, 1937.
Third cause of action—on or about May 1, 1937.
The defendant, however, contends and by way of affidavit has shown by its sales manager, the manager of its traffic department and the manager of a large distributor of magazines in and about New York City, that the said "Liberty" magazine is not published, circulated and placed on public sale on the date set forth on the magazine, but at least ten days earlier. So that the issue of "Liberty" magazine dated April 17, 1937 (First cause of action), was actually published, circulated and placed on public sale on April 7, 1937; the issue of "Liberty" dated April 24, 1937 (Second cause of action), was published, circulated and placed on public sale on April 14, 1937; the issue of "Liberty" dated May 1, 1937 (Third cause of action), was published, circulated and placed on public sale on April 21, 1937.
The plaintiff has not denied the facts set forth in the said affidavits. The plaintiff, in alleging publication of the alleged libelous articles, apparently relies upon the dates printed on each issue (Paragraphs "Eighth", "Twelfth" and "Sixteenth"), but these are not the true dates of the publications as is shown by said affidavits.
Giving the said affidavits the faith and credit they are entitled to under Section 56 of the Rules, it is apparent that as to causes of action First, Second and Third, the Statute had tolled and said causes of action are barred by the Statute of Limitations, because "they did not accrue within one year next preceding the commencement of this action."
The plaintiff contends that the magazines remained on the newsstands for a much longer period than the dates of publication claimed by the defendant and that each new sale constitutes a new publication. And the plaintiff claims a republication, circulation and selling on January 10, 1938 (Paragraphs "Ninth", "Thirteenth" and "Seventeenth"), See affidavit of James B. Wigdor.
In the opinion of the Court, this does not constitute a republication of the alleged libelous articles.
The contention of the plaintiff cannot be correct. If her contention is correct, the Statute of Limitations would never toll; certainly never as long as there was in existence, an issue of these magazines which was capable of being passed about or sold.
In the interpretation of Statutes, the spirit and...
To continue reading
Request your trial
-
Hartmann v. Time
...v. Look, Inc., D.C. S.D.N.Y., 1941, 39 F.Supp. 662; Cannon v. Time, Inc., D.C.S.D.N.Y., 1939, 39 F. Supp. 660; Means v. MacFadden Publications, D.C.S.D.N.Y., 1939, 25 F.Supp. 993; Wolfson v. Syracuse Newspapers, Inc., 1938, 254 App.Div. 211, 4 N.Y.S.2d 640, affirmed per cur. 1939, 279 N.Y. ......
-
Hazlitt v. Fawcett Publications
...distribution will not retard the accrual of the cause of action. Gregoire v. G. P. Putnam's Sons, supra; Means v. MacFadden Publications, D.C. S.D.N.Y.1939, 25 F.Supp. 993, 995; Winrod v. Time, Inc., 334 Ill.App. 59, 78 N.E. 2d 708, 710, leave to appeal denied, 1948, 336 Ill.App. XIV; Canno......
-
Zuck v. Interstate Publishing Corp.
...249 (N. D.Ill.1945), aff'd, 187 F.2d 180 (7 Cir., 1951), cert. denied, 342 U.S. 814, 72 S. Ct. 28, 96 L.Ed. 616; Means v. MacFadden Publications, 25 F.Supp. 993 (S. D.N.Y.1939); Cannon v. Time, Inc., 39 F.Supp. 660 (S.D.N.Y.1939); Backus v. Look, Inc., 39 F.Supp. 662 (S.D.N.Y. 1941); McGlue......
-
Gregoire v. G.P. Putnam's Sons
...744;Cannon v. Time, Inc., D.C., 39 F.Supp. 660;Backus v. Look, Inc., D.C., 39 F.Supp. 662;Means v. MacFadden Publications, Inc., D.C., 25 F.Supp. 993. The cases last cited make clear the principle of law, now firmly established. that where, by modern methods of mass publication, a single is......