Vigoda v. Marchbein

Steuer, J. (dissenting).

The action is in libel, the alleged libelous matter is attached to the complaint, and the question is whether it is in fact libelous. The publication is a circular letter to the members of the Jewish Ministers Cantors Association just preceding an election of officers of the association. The plaintiff and the defendant were candidates. That part of the publication which is claimed to be libelous sets out that the plaintiff undertook to collect certain pledges of donations to the association, which pledges totalled $1,000. At the time plaintiff undertook to make the collection, he asked for and received a number of blank receipts. The article asserts that the plaintiff only brought in $250 and that he was asked to account for the balance of the receipts and became angry and indignant.

The meaning of words charged to be libelous is to be determined by taking the words “ in the sense which is most obvious and natural, and according to the idea that they are calculated to convey to those to whom they are addressed.” (Larsen v. Brooklyn Daily Eagle, 165 App. Div. 4, 5-6.) The claim of the plaintiff is that the statement imports that he collected $1,000 and only turned in $250 to the organization. If this is correct, the statement is certainly libelous, but such a meaning is not the obvious import of the words used. They may well charge that plaintiff was inept in following up the pledges, but there is no charge, direct or otherwise, that he collected more than he accounted for. His failure to return the receipts — and that can only reasonably mean the forms of receipt — is likewise a reflection on his conduct but not an imputation of larceny or embezzlement. It is well settled that an innuendo cannot make a statement libelous which is otherwise not libelous (O’Connell v. Press Pub. Co., 214 N. Y. 352).

The complaint should be dismissed.

Breitel, J. P., Stevens and Bastow, JJ., concur in Per Curiam opinion; Steuer, J., dissents and votes to reverse in opinion in which Valente, J., concurs.

Order entered on December 10, 1959, denying defendant’s motion, under rule 106 of the Buies of Civil Practice, to dismiss the complaint, affirmed, with $‘20 costs and disbursements to the respondent.