#### Zealey Cohen, by Siegfried G. Gilbert, as Guardian *ad Litem,*Plaintiff, *v.*The New York Times Company, Defendant.

(Supreme Court, Kings Special Term for Trials,

December, 1911.)

Libel and slander — Words exposing to contempt or ridicule or causing person to be shunned — In general — Charging a live man with being dead.

The publication concerning a living person that he is dead may subject him to ridicule and is libelous *per se.*

Action for libel,

John J. Haggerty (Heir Steinbrink, of counsel), for plaintiff.

Leventritt, Cook & Ha than (Alfred A. Cook and Emil Goldmark, of counsel), for defendant.

■Crane, J.

The defendant published of the plaintiff, a living -person, that he was dead, and this action has been brought upon the assumption that such a false -article is libelous *per se.*The demurrer interp-osed to the -complaint challenges this assumption, the defendant claiming that, even if such a false notice to the public might subject the plaintiff to ridicule, yet, as death is common' to all and is no disgrace, the mistake could in no way affect his character and reputation and, therefore; -could not be libelous without proof and allegation of special damage. In other words, it is the defendant’s contention that ridicule not amounting to an' attack upon character, reputation or business is not a libel. With this assertion I cannot agree. Ridicule, contempt, odium and hatred are not synonymous; and there are statements which have the direct effect of causing one to be -ridiculed, made fun of or derided by the public or his acquaintances, although they do not bring upon him odium *619or hatred or -asperse his character, and which are, nevertheless, libelous.

A libel has been defined by innumerable cases collected in vol. 25 Cyc. as “ a malicious publication tending to expose one to public hatred, contempt *or*ridicule.”

Scandalous matter is not necessary to malí© a libel; it is enough- if the defendant induce a bad opinion to be had of the plaintiff *or*make him contemptible *or*ridiculous. White v. Nichols, *3*How. (U. S.) 266.

To allow the press to be the vehicle of malicious *ridicule*of private character would soon deprave the moral taste of the community and render the state of society miserable and barbarous. Cooper v. Greeley, 1 Den. 359.

To say falsely that one has met with poverty or wealth is not to reflect upon character or reputation, unless money be the measure of merit, whicli we know it is not; and -yet these statements may be so made as to be libelous.

. In Moffatt v. Cauldwell, 3 Hun, 26, we find it stated *"*mere poverty *ought*not *to expose any*citizen to ridicule. But the proposition that ridicule is a *non sequitur*from such an imputation, is not universally true. One may be so circumstanced, and- the fact of his alleged misery may be so put, as to excite ridicule and nothing else. * * * Neither is wealth a crime. Yet a poor man may be held up to ridicule by a false and malicious account of his sudden, though perfectly honest, acquisition of fortune. * * * The inquiry is, then, into the • natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at.” Cited also in Battersby v. Collier, 24 App. Div. 89.

Where a college professor was the subject of a sportive article on his struggles with poverty, it was claimed- that,as poverty was no disgrace, the ridicule was not actionable; but the court said, “ if the tendency o-f a written or published article is to disgrace the plaintiff *or bring him into ridicule or*contempt, the matter is libelous *per se.”*And it was held that the statement regarding this professor’s poverty “ holds him up before the public as ridiculous, and tends to abridge his comfort by exposing him to ridicule; their ten*620dency is to alter his station in society for the worse.” Martin v. Press Pub. Co., 93 App. Div. 531.

The ease of Kirman v. Sun Printing & Publishing Co., 99 App. Div. 367, passed upon the -publication *of prepara-, tion for a marriage celebration which did not take place because of .the groom’s absence. The opinion referred to the article -as follows: *“*She (the bride-to-be) has been held out to the p-u-blic as being the central figure or héroine, so to speak, of what is asserted to -be an absolutely fictitious and absurd story. The article necessarily tends- to her disparagement, and it holds her up to ridicule by making her the prominent figure in a purely fictitious narrative. * * * The cast of the article presents a ridiculous set of circumstances.”

In no one of the three cages above cited was the publication any reflection upon the reputation or character of the plaintiff; reputation was affected, if at all, -only by the person being the object of a ridiculous story, perfectly consistent with honesty, integrity and uprightness.

“ The principle,” it is said in Morrison v. Smith, 177 N. Y. 366, “ upon which the rule of legal liability for damage rests is that no man possesses the right to lessen the comforts, or the enjoyment, of another and that, when he does so deliberately, wantonly and maliciously, it is, *prima facie,*evidence of malice and he is bound to make- compensation for the mischief occasioned.”

To be the-butt of a false story holding one up for public amusement and jibes is to lessen the comforts and enjoyments to which that -person is entitled.

Thus it was held in the famous cáse of Cook v. Ward, 4 Moore & Payne, 99, 6 Bing. 409, that to state that the plaintiff had been mistaken for the hangman was libelous, even though the plaintiff had previously related the. joke about himself. Every joke which a man may be willing to relate about himself for the amusement of his acquaintances does not justify 'another, in printing it.

To publish • of a living person, that he is dead is not that sportive and thoughtless ridicule mentioned in Lamberti v. Sun Printing & Publishing Assn., 111 App. Div. 437. It *621will be noticed that the opinion in that case is very guarded in saying thatsportive and thoughtless ridicule that may beget laughter, that leaves the temporary 'victim unaffected in his reputation and his business is not *necessarily*libelous.” Unless there be a dispute as to the facts the words are either libelous of not libelous, being a question of law for the court. Woodruff v. Bradstreet Co., 116 N. Y. 217. An amusing incident may be so harmless that the courts can easily determine that no injury has been done the person who may be the subject of it, but yet no one can be held up in a false print for the public amusement to his annoyance and embarrassment without having an action for libel, even though the damage be slight. The ridicule in such a case is not sportive but libelous; the contempt implied in the ridicule the law does not strain to define or separate.

Careful search has failed to disclose any ease in this State exactly in point or holding it to be libel to falsely publish one’s death. The nearest approach to it is Cady v. Brooklyn Union Publishing Co., 23 Misc. Rep. 409. Here was published of a practicing dentist that he had committed suicide. This was held to be a libel, and the case of McBride v. Ellis, 9 Rich. (S. C.) 313, is cited. This latter case is in point as the publication was of the plaintiff’s death, and it was held to be libelous *per se*as it’ exposed him to ridicule. Both Newell on Libel and Slander (p. 48, 2d ed.) and' Odgers on Libel and Slander (p. 17) give this case as an authority. Certainly, in view of the revelations made by science and the medical profession, together with the regulations now imposed .upon the sufferer, the case of Rode v. Press Publishing Co., 37 Misc. Rep. 254, holding that it is no libel to publish of a person that he has consumption, cannot he considered the law.

The demurrer interposed herein is overruled with costs.

Demurrer overruled, with costs'.