Opinion
November, 1901.
Sanders Gray, for plaintiff.
Bowers Sands, for defendant.
This is a demurrer to a complaint in an action for libel. The ground assigned by the defendant is the insufficiency of the complaint to state facts constituting a cause of action. The article claimed to be libelous was published in defendant's newspaper and is somewhat lengthy. It is set forth in extenso in the complaint. It states that a raid was made by the police authorities of the city of New York through information furnished by a committee of citizens known as the "Committee of Fifteen" on a house occupied by the plaintiff, and used by her as a private boarding-house. It charges that certain persons in the house were guilty of gambling, and recites the method adopted to secure the information which led to the raid, and how persons seeking the information were ushered into the room where the gambling occurred by the servants of the plaintiff. The defendant's contention is that the article complained of, if libelous, is merely a libel of the house, and not of the plaintiff, and in the absence of any allegation of innuendo that the article meant that plaintiff knew of the existence of gambling, and in the absence of allegation of special damage that the complaint is defective. Reliance is placed by defendant for support of the position taken by it on the cases of Kennedy v. Press Pub. Co., 41 Hun, 422, and Bosi v. New York Herald Co., 33 Misc. 622; affd. in 58 A.D. 619. Neither of these cases, however, is in point on the libel here complained of. In the Bosi case, the alleged libel was that plaintiff's restaurant was the resort of anarchists. In the Kennedy case, the alleged libel, if any, was that the plaintiff was the proprietor of a concert hall which was the resort of improper characters. There was no charge against the individuals who conducted the places, nor any claim that there was anything illegal in the maintenance of the places. In the present case, however, it may be fairly inferred from the alleged libelous article, by reason of the statements concerning the connection of plaintiff's servants with the gambling, that such gambling was conducted on the premises with plaintiff's knowledge, it being unlawful under our law either to keep a room where gambling is conducted or to knowingly let or permit it to be used for such purpose. Penal Code, § 343. Giving the complaint the liberal interpretation to which it is entitled, and allowing for the fair and reasonable inferences from the allegations, I am of the opinion that the demurrer must be overruled. The demurrer is overruled, with leave to defendant to answer upon payment of costs.
Demurrer overruled, with leave to defendant to answer upon payment of costs.