Opinion
February 24, 1966
Appeal from the Chautauqua Special Term.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Order unanimously affirmed, with costs. Memorandum: In affirming the order of Special Term dismissing the complaint herein, we concur with the court's finding that the newspaper articles in question were nonlibelous as to the plaintiffs as a matter of law. However, we would express our disapproval of the Special Term Justice's selection of "several average citizens" to whom he handed the articles for an opinion as to "what, if any, conclusions they draw from the articles" to assist the court in determining whether the articles "would lead any reasonable, average citizen, by innuendo or otherwise, to reach the conclusion that the paper is attempting to charge or intimate that the fire was set by or caused to be set by, the plaintiffs". The determination required of the court was a matter for judicial consideration and decision and could not be made on the basis of the opinions of a selected group of persons in the community.