In the first cause of action tiff alleges that the February 16, 1962 issue of Life magazine contained a picture story of a Russian spy named Abel. Included therein was plaintiff’s picture. The initial caption thereunder in bold capital type was “ his admirer ”.
In the second cause of action plaintiff alleges the entire caption: ‘ ‘ his admirer. Frank Gambuzza, a radio dealer who sold Abel some parts for wireless receiver, praised the Russian for his electronic know-how.” By way of innuendo plaintiff alleges that the caption implied that plaintiff may have aided Abel, the spy.
In the light of current public opinion and sentiment on Communists and their sympathizers, whether the alleged statements are libelous involves issues of fact. (Mencher v. Chesley, 297 N. Y. 94; Katapodis v. Brooklyn Spectator, 287 N. Y. 17.)
Accordingly, I dissent and vote to affirm.
Botein, ' P. J., and Stevens, J., concur with Rabin, J.; McNally, J., dissents in opinion in which Valente, J., concurs.
Order, entered on October 3,1962, denying defendant’s motion to dismiss the- complaint for insufficiency reversed, on the law, with $20 costs and disbursements to the appellant, and the motion granted,- with- $10 costs.