Opinion
March 16, 1906.
Wales F. Severance, for the appellant.
Franklin Bartlett, for the respondent.
The plaintiff alleges that he was graduated from the University of Rochester and from the Union Theological Seminary, and that thereafter in this country and in Europe he was a university student of medical subjects, especially of a medico-legal and criminological nature; that he served the government at Washington as a clerk, under the title of "Specialist in Education as a Preventive of Pauperism and Crime." He further alleges that he is widely and favorably known here, in Canada and in Europe, both as a student of criminology and a writer of various publications on that and kindred subjects. This article charges that the plaintiff, who it states is not a doctor, "entrapped" young girls and married women into disclosing their delicate confidences (and it is not even stated that this information was gained primarily to aid or to treat these women), and then published them in a book which he hawked for sale by advertisements assuring secret delivery. In other words, that the plaintiff gained confidences of women and compiled and offered to sell them, not in the interest of scientific information or good morals, but for money, in a way that would attract those of morbid and unclean minds. If the charge is true, the plaintiff did a vile thing.
The rest of the article is in form of imputations, based upon the plaintiff's report in a public document of his professional work. The fact that the article states that the statistics suggest a particular thought, but neither makes a direct charge nor asserts that but one conclusion is possible, does not afford immunity to the defendant. ( Sanderson v. Caldwell, 45 N.Y. 398; Odgers Lib. Sland. [3d ed.] 134; Rundell v. Butler, 7 Barb. 260.) It is clear enough that the article states that the statistics justify the conclusion that the plaintiff in his professional work applies his testing machine and his tape more frequently to girls than to boys because of the sex of the former, and it is almost unnecessary to say that tape measurements at least indicate manual contact.
The "thought" is more clearly indicated by the statement that the propensity increases when the girls and boys are sixteen years of age and over, and by the comparison made in the relative number of boys and girls examined by Dr. Bowditch. The article may be construed as an imputation of indecent and lascivious conduct toward young girls under the cloak of professional investigation.
Upon demurrer we cannot hold that the article is within the purview of fair criticism in that it is confined to attack upon the work of the plaintiff and does not brand the workman as an object for public contempt, scorn and obloquy. ( Triggs v. Sun Printing Pub. Assn., 179 N.Y. 144, 154; Whistler v. Ruskin [ Times for Nov. 27, 1878], cited in Odgers Lib. Sland. [3 ed.] 35; Newell Sland. Lib. [2d ed.] 567.) Ordinarily such a question is for the jury ( Triggs v. Sun Printing Pub. Assn., supra), and we think that it is in this case. The other points raised by the learned and able counsel for the appellant are discussed in the opinion in MacDonald v. Sun Printing Publishing Assn., No. 2 ( 111 App. Div. 465).
The interlocutory judgment is reversed, with costs, and the demurrer is overruled, with costs.
HOOKER, GAYNOR, RICH and MILLER, JJ., concurred.
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to plead over within twenty days upon payment.