#### Martha D. Lowe, Plaintiff, *v.*James Gordon Bennett, Defendant.

(Supreme Court, Kings Trial Term,

May, 1899.)

Libel — A defense which, is insufficient will not be stricken out.

, The complaint in-an. action of libel pleaded, in the .form of an innuendo, that the meaning of the language used in the defendants , newspaper was, and that the defendant thereby Intended to irn..pute against the plaintiff, that, upon the trial ¡of an action ¡for ab¡splute divorce between persons named Cruikshank, flashlight .photo*357graphs were introduced in evidence which revealed the figure of the alleged guilty husband disrobing at night in an apartment of the plaintiff, whom the wife had charged to be his paramour; and it was further alleged that said photographs “ furnished evidence thqt said William J. Cruikshank and this' plaintiff had been guilty of illicit sexual relations and adultery”. A separate defense alleged “ that it was also true and testimony was given upon the trial of the said suit for divorce in substance as follows: That the defendant in that action was seen disrobing in an apartment in the house of the plaintiff herein, and that photographs were taken of such house ”.

Held, that a motion to strike out the defense must be denied. That, as it did not allege that the plaintiff had committed adultery, it did not amount to a defense and that the plaintiff’s proper course was to take that objection on the trial, not having demurred.

Action for libel. Motion to strike out part of the defense.

The complaint sets out the following as the defamatory words;

*“*Photographs to win divorce suit. Mrs. Cruikshank’s Attorneys introduce them at a retrial of her suit against the Doctor. Under flashlight at night. Snap shots at Dr. Cruikshank by an expert photographer in a house across street. Prominent persons' involved. Photographs are relied upon to win Mrs. Cruikshank’s suit for divorce from Dr. Cruikshank, a prominent physician of Brooklyn. ■ The trial is on in the Brooklyn Supreme Court, and William L. Drummond was the all important first witness. He said he was an expert photographer and identified photographs in the possession of counsel for Mrs. Cruikshank as his work. Mrs. Martha Dorlon Lowe is the woman of whom Mrs. Cruikshank complained, and she lived at Ho. 18 Berkeley Place, Brooklyn. Mr, Drummond testified that the photographs were taken by him from Ho. 11 Berkeley Place, almost directly opposite. Mrs. Cruikshank and her father had engaged an apartment at-Ho. 11 for him, and he'had taken by a flashlight process pictures of Dr. Cruikshank as he entered and left Mrs. Lowe’s house late at night. He- had also caught two or three pictures of the doctor, the witness alleged, as he was' disrobing in an apartment in Mrs. Lowe’s house. Opening his case for the plaintiff, Lawyer Latson told the Jury he would prove every allegation in Mrs. Cruikshank’s complaint by the indisputable evidence offered by these photographs.” ■

*358. It then pleads the following innuendo:

“ .That the meaning of the said language was and the defendant intended thereby to say and to impute against the plaintiff that upon the trial of a suit for divorce, which had been instituted by one Maud Cruikshank against one William J. Cruikshank, and in which the defendant had interposed counter charges of adultery and, in which' decrees of absolute divorce were demanded by both v parties, and in which this plaintiff was named by the said Maud Cruikshank as co-respondent, photographs had been introduced in evidence by the said Maud Cruikshank, which had been taken by flashlight at night, and that said photographs revealed the figure of said William J. Cruikshank disrobing in an apartment of the house of this plaintiff and "furnished evidence that said William J. Cruikshank and this plaintiff had been guilty of illicit sexual relations and adultery.”

It then alleges “ that the language so published was false.”

After a general denial, which is miscalled a “ first defense ”, the answer sets up the following defense which it calls a *“*second defense ” :

*u*Eor a second defense the said defendant states that so much’ of the alleged libel as is as follows, namely, *1*Photographs to win divorce suit. Mrs. Cruikshank’s Attorneys introduce them at retrial of her suit against the Doctor. Under flashlight at night. Snap shots at Dr. Cruikshank by an expert photographer in a house across street. Prominent persons involved". Photographs are relied upon to win Mrs. Cruikshank’s suit for divorce from Dr. Cruikshank, a prominent physician of Brooklyn. The trial is on in the Brooklyn Supreme Court, and William L. Drummond was the all important first witness. • He said he was an expert photographer and identified photographs in the possession of counsel for Mrs. Cruikshank as his work. Mrs. Martha Dorlon Lowe is the woman of whom Mrs. Cruikshank complained, and she lived at Ho. "18 Bei’keley Place, Brooklyn. Mr. Drummond' testified that, the photographs were taken by him from Ho. 11 Berkeley Place, almost directly opposite. Mrs. Cruikshank and her father-had engaged an apartment at Ho. 11 for him, and he had -taken by a flashlight process pictures of Dr. Cruikshank as he entered and left Mrs. Lowe’s house late at night. He had also caught, two or three pictures of the doctor, the witness alleged, as he was disrobing in an apartment in Mrs, Lowe’s house.. Opening his case for the plaintiff, Lawyer Latson told the Jury he would prove every allegation in Mrs. Cruikshank’s complaint by the indis*359putable evidence offered by these photographs,’ was true in substance and fact, and that it was also true and testimony was given upon the trial of the said suit for divorce in substance as follows: That the defendant in that action was seen disrobing in an apartment in the house of the plaintiff herein, and that photographs were taken of such house.”

The motion is to strike out the last part of the alleged defense, viz.: “ and that it was true and testimony was given upon the trial of the said suit for divorce in substance as follows: That the defendant in that action was seen disrobing in an apartment in the house of the plaintiff herein, and that photographs were taken of such house.”

Walter M. Rosebault for motion.

Robert W. Candler opposed.

Gaynor, J.:

The plaintiff pleads an innuendo that the meaning of the language of the alleged libel was, and the defendant intended thereby *“*to say and impute against the plaintiff ”, that flashlight photographs which revealed the figure of Dr. Cruikshank “ disrobing in an apartment of the house of the plaintiff ” were introduced in evidence, “ and furnished evidence ” that the plaintiff committed adultery with' him. She thereby limits and confines her complaint to the words and meaning thus singled out as constituting the alleged libel. The statement in the alleged libel, and the meaning therefrom alleged in the innuendo and attributed to the defendant, viz., that photographs which only showed Dr. Cruikshank disrobing in an apartment of the plaintiff’s house “ furnished evidence ” that she committed adultery with him, is argumentative. To say that a thing is evidence of a dereliction of which it is no evidence may be libelous if it be’ broad enough to impute that the dereliction occurred. The innuendo therefore assigns no libel unless the statement that Dr. Cruikshank was photographed disrobing in an apartment of the plaintiff’s house', coupled with the statement that such photograph was evidence of adultery with him by the plaintiff, amounts to a charge that she did commit adultery with him-. The gist of the alleged libel, (if it be a libel), is an imputation of adultery. If there be no such imputation there is no libel. As the alleged defense does not set up that such adultery was committed it is no defense. The course *360for the plaintiff is to take that objection on the trial, not having demurred.'

I have leniently accepted the innuendo as meaning to state that the plaintiff was named as the paramour of the husband in the answer in the action for divorce, for that is the meaning I find in the brief of the learned counsel for the plaintiff. The allegation in the innuendo is that she was named *“*as co-respondent ”. Eeither in our law nor in the dictionary has the word co-respondent any such meaning. ■ In England in an action for divorce, the plaintiff and the defendant, as we call them, are the petitioner and-the respondent. In such an actión there the husband may make the paramour a party respondent, and in that way he is and is called “ co-respondent ”. "With us if the paramour could be so joined he would be a “ co-defendant ”, not a “ co-respondent ”. Lawyers and judges speak scientifically and with precision out of regard to the science of the law.

The motion is denied.