(dissenting). This is an action for libel. Plaintiff charges in three separate causes of action that defendants published three editorials concerning his conduct as a Member of Congress that were libelous. On a motion to dismiss the complaint for insufficiency the court at Special Term dismissed the last two causes alleged, which were based on the second and third editorials, and sustained the complaint as to the first cause of action, which was based on the first editorial. Both sides have appealed in part from the order entered on this décision.
The subject-matter of the articles complained of was plaintiff’s attitude toward and his vote against a measure of legislation commonly called the lend-lease bill. The facts concerning this legislation and its purposes were common knowledge and of great public concern. It is now a matter of historic knowledge, known to every fairly well-informed person, that the proponents of this measure urged its adoption on the ground that, in the face of a totalitarian threat to all democracies, it would be for the best defensive interests of the United States to lend all possible aid to Great Britain and those other countries which were opposed to the Axis powers. Many of its opponents took the contrary view that the material aid which it was proposed to divert to Great Britain and her allies should be kept here to build a greater defen give armament for the defense of the United States in case we were attacked. It is obvious that on a momentous issue of public policy such as this, men, equally sincere and patriotic, and free from corrupt or dishonorable motives, might well take divergent views, especially in the light of events then known and the information then available. I advert to these matters of general knowledge merely because of the fact that the editorials in question voice the view that no one who had the best interests of the United States at heart would oppose the measure.
As a Member of Congress plaintiff’s attitude and conduct on this legislation were fair subjects for public comment and criticism *415(Hamilton v. Eno, 81 N. Y. 116.) In the case of a public official such comment is a qualified privilege subject to these limitations:
(1) The facts must be truly stated;
(2) The comment must be fair; that is, it must be such an inference as a fair-minded person would be warranted in drawing from truly stated facts; and it must not attribute evil or dishonorable motives unless such motives • are inferences to be fairly drawn from the facts. (Hoeppner v. Dunkirk Printing Co., 254 N. Y. 95; Foley v. Press Publishing Co., 226 App. Div. 535; Bingham v. Gaynor, 203 N. Y. 27);
(3) It must not be motivated by malice, otherwise the privilege is lost. (Cooper v. Stone, 24 Wend. 434; Hart v. Townsend; 67 How. Pr. 88; Triggs v. Sun Printing & Publishing Assn., 179 N. Y. 144.)
It has been said authoritatively: “ A comment is fair when it is based on facts truly stated and free from imputations of corrupt or dishonorable motives on the part of the person whose conduct is criticized, and is an honest expression of the writer’s real opinion or belief.” (Briarcliff L. Hotel v. C.-S. Publishers, 260 N. Y. 106.) If the words used do not constitute a naked libel but may have a defamatory and libelous meaning, omitting any enlargement by way of innuendo, when such construction is placed upon them as would be naturally adopted by the average reader, then it is for a jury to say whether or not the publication was so understood, and if it is a question upon which reasonable men might differ it is for a jury to say which viewpoint is to be taken. (Hays v. American Defense Society, 252 N. Y. 266; Hoeppner v. Dunkirk Printing Co., supra; Hoey v. New York Times Co., 138 App. Div. 149; O’Connell v. Press Publishing Co., 214 N. Y. 352; Morrison v. Smith, 177 id. 366.) In the case last cited it was said (p. 369): “ If they [the words employed] are capable of such a meaning, however improbable it may appear, the jury should say whether they may be so understood.”
The question then which we have to determine is whether the natural import of these articles or any of them would be considered libelous by the average reader. To determine this question it is not necessary in my judgment to quote the editorials in full. I fully appreciate the rule that ordinarily the entire article or articles are to be considered as a whole, but in this particular case the portions which I quote are neither enlarged or diminished in meaning or effect by the portions omitted. The first editorial contained these statements: “ Sometimes we think that the younger generation is softening and sometimes we think the softening is not necessarily in the muscles. Of course, you realize that by this vote you *416have raised a question about your attitude on national defense and so it seems in order to ask you at this juncture whether you do feel that this country should be defended against un-Americanisms or whether you are going to take the line of least resistance and wind up with the Quislings.”
In my opinion this cannot be held as a matter of law to be merely fair comment on plaintiff’s vote or its effect. It assumed, as its language indicates, that any one who opposed the lend-lease bill was also opposed to national defense, an assumption of fact quite unwarranted, and to the average reader it might well convey the imputation that plaintiff’s attitude was dishonorable and contrary to his sworn duty as a representative of the people.
The second editorial contained these passages:
“ The figures on the canvass of public opinion were not in yesterday when we suggested a referendum. If they had been, we wouldn’t have suggested it, because that cross section was taken from the rank and file, with a careful detouring of all well-recognized propagandists and leaders on aid to Britain. In short, Mr. Hall had about the best break he could hope to get, the advantage of every doubt, and yet the score was something like 10-1 against him — against his vote — against his decision, which was obviously not reached as a result of any consultation with the Americans in the 34th Congressional District. * * *
“ First, we think Mr. Hall should promise in writing that he will vote on matters of national defense in accordance with the best interests of the United States, and not in accordance with the best interests of the 5th columnists who represent Hitler, Benito Mussolini, the Japanese and Joe Stalin in this country. * * *
“ Generally speaking, the newspapers of this area didn’t support Mr. Roosevelt in the recent campaign. They aren’t supporting him now necessarily. THEY ARE SUPPORTING THE DEFENSE OF THE UNITED STATES OF AMERICA. So are the people of the 34th Congressional District. That’s what they want Mr. Hall to do as their representative in Congress. And they have the right to expect it. * * *
“ Mr. Hall signs all his letters ‘ Your Congressman.’
“ Well, whose? Whose congressman?
“ Is he the representative of the people of the 34th Congressional District? Or is he the representative of a small minority of weak-kneed, jelly-backed, slab-sided, half-baked, parasitical long-haired mugwumps who are merely using this country for the purpose of making a living and have no intention of defending its ideals? Offhand, we think Mr. Hall had better explain pretty doggone fast.”
*417This language I think is, at least, capable of a construction which passes the bounds of fair comment. The average reader might well be led to draw the defamatory conclusions from these words that plaintiff had arrived at his decision to vote as he did not by consultation with the citizens of his country but with those who are opposed to its defense, and that he voted in the interests of the fifth columnists, so called, and presumably the enemies of his country.
The third editorial had this to say: “ In his book, ‘ Mein Kampf/ which amounted to blueprint and specification of how he intended to smash democracy, Adolf Hitler pointed out that the processes and the divided counsels of democracy offer an open invitation to the totalitarian will. He pointed out that democracies may be thrown into confusion because of their very processes; that the people have to depend on selfish politicians, weak politicians, fearful politicians and greedy politicians to express their will; that in consequence the will is often not expressed (sic Mr. Hall’s vote).” I also believe that this language presents a question for a jury to pass upon. It seems to me the average reader could draw the conclusion from these words that plaintiff had classified himself by his attitude and vote as a greedy politician and one who placed greed above the welfare of his country. To a man in plaintiff’s position such a charge carries the imputation of dishonorable conduct and amounts to defamation.
We are here concerned not with the probability of plaintiff’s success upon a trial but merely to determine whether he has stated valid causes of action. I take it that we are required to apply the same rule to this complaint as we would to a complaint in any other action, that is to say, every reasonable intendment must be drawn in favor of the pleader. If the articles are at all ambiguous and susceptible of a libelous meaning then whether or not they would be understood in a libelous sense must necessarily be a question for a jury to determine. Indeed, as has already been pointed out, if they are capable of such a meaning, however improbable it may appear, a jury should be permitted to say whether they may be so understood. (Morrison v. Smith, supra.) The complaint very fully alleges the libelous inferences which an average reader could draw from each of the articles in question. Also it must not be overlooked that plaintiff has pleaded express malice on the part of the defendants. Unless we can say as a matter of law that the articles are not susceptible of any libelous meaning whatever, we must, for the purposes of this appeal, accept the allegation of malice as true. Malice, as heretofore pointed out, destroys the protection of what would otherwise be a qualified *418privilege. While it is my opinion that the articles are not libelous per se, it is also my view that they are susceptible to a libelous meaning, and hence that plaintiff is entitled to have them submitted to a jury.
The order appealed from in so far as it dismisses the second and third causes of action alleged in the complaint should be reversed, with costs; otherwise, the order should be affirmed.
Schenck, J., concurs.
Order * reversed on the law, with fifty dollars costs and disbursements.
Motion to dismiss complaint granted, with costs.
In so far as appealed from by defendants.— [Rep,