Opinion · Appellate Division of the Supreme Court of the State of New York
D'Altomonte v. New York Herald Co.
D'Altomonte v. N.Y. Herald Co., 139 N.Y.S. 200 (Appellate Division of the Supreme Court of the State of New York 1913)
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1913-01-03
- Topic
- general
Clarke, J.: I agree with the opinion of Mr. Justice Scott except so much thereof as sustains the demurrer to the first cause of action upon the ground that the article complained of is not libelous. The complaint alleges that the plaintiff was and still is a member of the Italian nobility, being a baron by birth; that he was and still is a member of the Italian Geographical Society of Milan, and a member of American Geographical Society of New York; that at the time of said publication he was of good name, fame and credit and well and favorably known through-' out the world, having been prominent in many endeavors of international scope; that he was a noted professional news*454paper correspondent, traveler, writer and lecturer of recognized ability, commanding several languages; that from July, 1902, to December, 1905, he was commissioner of police in the Belgian Congo, was for some time chief editor of La Nazione, a daily newspaper of wide circulation published in Florence, Italy; that he. had delivered lectures on African life and politics before the Geographical S'ociéty of Milan and Florence and other audiences; that he had been employed from time to time by the police department of the cityx of New York and by the treasury department of the United States to do work in the investigation of crime and criminals; that at the time of said publication he was well-known authority on criminology and on African life and. politics; that he had written hooks, articles and pamphlet…
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D'ALTOMONTEv. NEW YORK HERALD CO.,154 App. Div. 453(1913)
139 N.Y.S. 200
ANTONIO B. D'ALTOMONTE, Respondent,v. NEW YORK HERALD COMPANY,
Appellant.
Appellate Division of the Supreme Court of New York, First Department.
January 3, 1913.
I think the publication ascribing the authorship of such an article to a man of the standing and reputation which plaintiff claims for himself, admitted by the demurrer, if false and a forgery, is calculated to hold him up to ridicule and contempt and to destroy his influence as a writer and lecturer, and is susceptible of the construction and the consequences placed upon it by the complaint. I think it comes within the spirit of the decisions inTriggsv.Sun Printing Pub. Assn. (179 N.Y. 144) andHolmv.Holm(146 App. Div. 75).
The order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent, with leave to the defendant to withdraw the demurrer and to answer within twenty days on payment of costs in this court and in the court below.
McLAUGHLIN and DOWLING, JJ., concurred; INGRAHAM, P.J., and SCOTT, J., dissented in part.
The defendant has demurred separately to each count for general insufficiency, and has also demurred to the complaint asPage 456improperly joining causes of action. Both causes of action are founded upon the publication by defendant of an article introduced by a short biography of plaintiff, and consisting of what purports to be a short story written by him in the first person, and recounting in vivid language an adventure in which he took a leading part, and which resulted in the rescue of a white man who was about to be killed by African cannibals. The story is vividly told, and while its literary style may not be of the highest class, it contains nothing reflecting in the slightest degree upon the courage, resourcefulness or conduct of plaintiff. Indeed, his objection to it seems to be founded upon the fact that it extols him so highly that he may be accused of undue self-laudation. He alleges that the story is untrue in every particular; that he did not write it, and that the incidents described therein never occurred. He, therefore, claims to have been libeled by it and seeks damages for its publication. He alleges no special damage. If, therefore, he can sustain the first count in his complaint, it must be because the article is libelousper se. Mere falsity in a writing concerning a person does not constitute a libel. It must go further and tend to disgrace the person written about, or bring him into ridicule or contempt. (Martinv.Press Publishing Co.,93 App. Div. 531.) There is no ambiguity about the article complained of, and we agree with the learned justice at Special Term that it "contains no reflection upon plaintiff's honor or integrity, nor does it portray him in any ridiculous situations." The question whether the article is libelous or not is, therefore, one for the court. (Moorev.Francis,121 N.Y. 199.) We cannot find in the article anything tending in anywise to injure the plaintiff's reputation, except perhaps as a skillful writer of fiction, but no case has yet gone so far as to hold that it is libelousperseto attribute to a writer an inelegant literary style. Nor does it hold him up to ridicule in the sense in which the articles complained of inTriggsv.Sun Printing Pub. Assn. (179 N.Y. 144) were deemed by the Court of Appeals to have held up the plaintiff in that action to ridicule. Those articles were avowedly written in jest with a view to amusing the readers of the newspaper at the expense of Prof. Triggs. The article complained of in plaintiff's first cause of action is written in aPage 457perfectly serious vein and is, if anything, complimentary rather than derogatory to plaintiff's character. Doubtless it would be libelous to falsely attribute to an author an obscene or profane article, or one which expressed sentiments abhorrent to right thinking people, for such an article would hold the putative author up to scorn and contumely, but the article complained of here is not such an one. As to this cause of action, the demurrer should have been sustained.
As to the second cause of action, I think that the demurrer was rightly overruled. Section51of the Civil Rights Law reads, in part, as follows: "Any person whose name, portrait or picture is used within this State foradvertising purposesor for thepurposes of trade, without the written consent first obtained as above provided, may maintain an equitable action * * * and may also sue and recover damages for any injuries sustained by reason of such use * * *." The question is, whether the use of the plaintiff's name as the author of the article complained of was a use "for advertising purposes or for the purposes of trade." I think it was. The article was not a news article in any proper sense, but purported to be a story of adventure and was attributed to plaintiff as a person of such experience and character that an article by him would be calculated to attract readers to the paper. The story would have been just as good (or bad) a one, as a literary production, if plaintiff's name had been omitted, and if no author's name had been appended. The obvious purpose of using plaintiff's name was to give to the story an attribute of verisimilitude and authenticity. This, as I consider, was using the name for the purposes of trade.
As to the joinder of the causes of action. It is apparent that both causes of action arise out of the same transaction, to wit, the publication of the article complained of. All the damages the plaintiff suffered in consequence of the publication must be recovered in the same action. (Binnsv.Vitagraph Co.,147 App. Div. 783.)
INGRAHAM, P.J., concurred.
Order affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of costs.Page 458