HORTON v. BINGHAMTON PRESS CO.

(Supreme Court, Appellate Division, Third Department. November 13, 1907.)

1. LIBEL-Defined.

Libel is a malicious defamation, expressed either in printing or writing, tending to blacken the reputation of one who is alive, and to expose him to public hatred, contempt, or ridicule.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 1.

For other definitions, see Words and Phrases, vol. 5, pp. 4116-4125.] 2. SAME-IMPUTING UNCHASTITY.

A publication that plaintiff's daughter resided with her parents in a certain block, the block being known as a resort for prostitutes, does not warrant an inference by the jury that the plaintiff was charged with being a prostitute, for any such inference is counterbalanced by the fact that she was living there with her husband and daughter.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 78.]

3. SAME.

A publication that plaintiff was the housekeeper for a man who was a criminal does not authorize the inference that she was his mistress, or that she was a person of immoral character.

4. SAME-RIDICULE OR CONTEMPT-QUESTION FOR JURY.

Whether a publication that plaintiff resided in a block which was the resort of prostitutes tended in any way to hold her up to ridicule or contempt is a question for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, 88 356-364.]

5. SAME.

Whether a publication that plaintiff's husband had obtained a divorce from her, which was false, did impute to her a fault or wrong which would tend to hold her up to contempt and scorn in the community, is a question for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 356-364.]

Appeal from Trial Term, Broome County.

Action by Anna L. Horton against the Binghamton Press Company. From an order setting aside a verdict for plaintiff and granting a new trial, on the ground that the verdict was contrary to law, plaintiff appeals. Order affirmed.

Appeal by plaintiff from an order setting aside the verdict of the jury heretofore rendered in behalf of the plaintiff and granting a new trial on the ground that the verdict is contrary to law, which order was entered in the Broome county clerk's office on the 3d day of January, 1907.

The action is brought to recover damages for libel. Upon the 15th day of May, 1905, the defendant published an article referring mainly to the plaintiff's daughter. The heading of the article is as follows: "Binghamton Girl Fiancée of Mr. Croker. Allegation of Miss Horton. She Says She was to be Married to Him. Family Says 'No.' Was in Charge of News Stand Here." The parts of the article claimed to be libelous to the plaintiff are three in number:

(1) It was stated that Miss Horton resided with her parents for some time in the city of Binghamton "in the Horton block on North. Chenango street, and also on Washington street."

(2) That_this_plaintiff was divorced from a man named Neal, he securing the divorce in Pennsylvania.

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(3) That while this plaintiff was housekeeper for Druggist Wheeler, and after his arrest on the charge of attempting to burn his place of business in Lestershire, he killed himself with a quick poison, which he had concealed in his clothes.

The complaint further alleges that the article is libelous "because the said Horton block on North Chenango street is, and was at the time of said publication, and for some years prior thereto, had been, a notorious resort of prostitutes; that this plaintiff never resided in said Horton block so mentioned in said publication." It is further alleged "that Washington street, in said city of Binghamton, the place mentioned in said article, is, and was at that time and at the time referred to in said publication, a resort for prostitutes, and that the intent and meaning of said publication was that this plaintiff had resided in a resort or resorts for prostitutes, and was a prostitute herself, and that that portion of said publication referring to her as the housekeeper of said Wheeler was intended to and did convey the idea to the public that she had been the mistress of said Wheeler and was a person of bad character."

Evidence was given to the effect that the Horton block on Chenango street had the reputation of being a resort for prostitutes, and that a certain portion of Washington street had a similar reputation. It was further shown that, instead of the plaintiff's husband having procured a divorce from her, she procured a divorce from her husband; and it was further shown that she was not the housekeeper for the man Wheeler at the time he committed suicide, as was alleged in the article.

The trial court charged the jury that the only question submitted to them was whether plaintiff was damaged by the statement that she had lived with her husband and daughter in the Horton block and on Washington street, and he left it to the jury to determine whether such a charge tended to show that the plaintiff herself was a prostitute, and, if so, they were allowed to give her such damages as they thought proper. The jury returned with a verdict of $5,000. Upon a motion that the verdict be set aside, the trial court granted an order setting aside the verdict. The material portions of the order read as follows:

"It appearing that the article complained of is not susceptible of the meaning ascribed to it, and that, considering the whole scope and object of the article, unchastity or other misconduct or impropriety on the part of the plaintiff cannot be legitimately inferred from the natural meaning and import of the language used, and the court should have held as a matter of law that the publication was not libelous, ordered that the verdict herein be set aside and a new trial of the action be, and the same is hereby granted because the verdict is contrary to law."

*

From this order setting aside the verdict the plaintiff has appealed to this court.

Argued before SMITH, P. J., and CHESTER, KELLOGG, and COCHRANE, JJ.

Wheeler & Gross (John T. Wheeler, of counsel), for appellant. T. B. & L. M. Merchant (T. B. Merchant, of counsel), for respondent.

SMITH, P. J. Libel has been defined as a malicious defamation, expressed either in printing or writing, tending to blacken the reputation of one who is alive, and to expose him to public hatred, contempt, or ridicule. We are unable to find any warrant in the article published for the inference by the jury that the plaintiff was charged with being a prostitute. Any inference that she was a prostitute, that may be drawn from the charge that she lived in a block which was the resort of prostitutes, would seem to be fully counterbalanced by the fact that she was living there with her husband and daughter. The charge

that she was the housekeeper of a man who himself was a criminal does not authorize the inference that she was his mistress, or that she was a person of immoral character.

From the article published two facts might have been submitted to the jury: First, whether the allegation that plaintiff resided in at block which was the resort of prostitutes tended in any way to hold her up to ridicule or contempt. If so, the jury might have been instructed that she was entitled to damages. Second, whether the allegation that her husband had obtained a divorce from her, which was false, did impute to her a fault or wrong which would tend to hold her up to contempt and scorn in the community. If so, the jury might have been charged that she was entitled to damages for such publication.

Whatever may be the grievance of the daughter against this defendant, we can see no other cause of complaint which this plaintiff may have, and, as these questions were not submitted to the jury for their determination, the order for a new trial was properly granted, and should be affirmed, with costs.

Order affirmed, with costs. All concur.

BAUER v. HART et al.

(Supreme Court, Appellate Division, First Department. November 22, 1907.) DISMISSAL-WANT OF PROSECUTION.

Dismissal for want of prosecution of an action brought in 1892 to charge the trustees of a corporation with a liability imposed by the act of incorporation was properly refused, where an interlocutory judgment entered July 13, 1899, was reversed in April, 1903, on the appeal of several defendants, including the movants for dismissal, and since then several defendants have died and there has been delay in reviving the actions against their personal representatives.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Dismissal and Nonsuit, §§ 140. 141.]

Appeal from Special Term.

Action by Louis Bauer against George S. Hart and others, inpleaded with others. From an order denying a motion to dismiss for want of prosecution, defendants appeal. Affirmed.

Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, HOUGHTON, and SCOTT, JJ.

Alfred H. Holbrook, for appeliants.

H. V. Rutherford, for respondent.

INGRAHAM, J. This action, which was to charge the trustees of a corporation with the liability imposed by the act of incorporation, was commenced in March, 1892. There had been an interlocutory judgment entered on July 13, 1899, which, in April, 1903, was reversed by this court on the appeal of seven of the defendants, including the moving parties. Since that time several of the defendants have died, and there has been delay in reviving the actions against their personal representatives, and the case has not been again brought on for trial. We have come to the conclusion that the court below was justified in

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denying this motion upon the papers presented. We express no opinion upon the effect of the fact that the indebtedness of the corporation largely exceeds the liability of all the directors as to the necessity of making all of the directors or their personal representatives parties. That question can be submitted and determined upon the trial of the action. We think, however, that the case should now be disposed of, and the affirmance of this order is without prejudice to a renewal of the motion in the event that the plaintiff should not promptly bring the case on for trial.

The order is therefore affirmed, with $10 costs and disbursements. All concur.

BAUER v. PARKER et al.

(Supreme Court, Appellate Division, First Department. November 22, 1907.) Appeal from Special Term.

Action by Louis Bauer against Henrietta M. Parker, as executrix of John L. Macaulay, impleaded with others. From an order denying a motion to dismiss the complaint for failure to prosecute, defendants appeal. Affirmed.·

Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, HOUGHTON, and SCOTT, JJ.

James C. Foley, for appellants.

H. V. Rutherford, for respondent.

PER CURIAM. The order appealed from is affirmed, with $10 costs and disbursements, for the reasons stated on the appeal in this action by the defendants George S. Hart and others. 106 N. Y. Supp. 877.

PEOPLE v. DUFFY-McINNERNY CO.

(Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. TAXATION-TRANSFER OF CORPORATE STOCK-TRANSFERS SUBJECT TO TAXORIGINAL ISSUANCE OF STOCK.

The original issuance of stock by a corporation is not within Laws 1905, p. 474, c. 241, as amended by Laws 1906, p. 1008, c. 414, imposing a tax on all sales or transfers of corporate stock, whether made on or shown by the books of the corporation, or by any assignment in blank. or by any delivery or any paper or other evidence of transfer or sale. 2. SAME-PROPERTY LIABLE.

A tax will not be held to be imposed on property, except by language clearly indicating the intent of the Legislature to render the same subject to tax.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 134.) Submission of controversy between the people of the state of New York and the Duffy-McInnerny Company, under Code Civ. Proc. § 1279, as to whether the original issuance of its stock by defendant was subject to tax under Laws 1905, p. 474, c. 241, as amended by Laws 1906, p. 1008, c. 414. Judgment directed for defendant.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

William S. Jackson, Atty. Gen. (Timothy J. Dillon, of counsel), for the People.

James Breck Perkins, for defendant.

SMITH, P. J. The defendant is a domestic corporation, organized to carry on business in Rochester, N. Y., as a department store. It was incorporated on April 14, 1906. Its capital stock is $2,000,000. The entire amount of stock was subscribed and paid in on the 1st of April, 1907. The capital having been paid in full, the company issued to the subscribers certificates for the amounts to which they were entitled, amounting in all to 20,000 shares. No stamps were attached to the stock thus issued. If the issuance of this stock be subject to the tax under chapter 241, p. 474, of the Laws of 1905, the tax would amount to the sum of $400. The question here for decision is whether the original issuance of this stock is a transfer under the terms of the act, rendering it subject to taxation.

This chapter was amended by chapter 414, p. 1008, of the Laws of 1906. The amendment was, however, not in any matter material to this controversy. The law reads:

"There is hereby imposed and there shall immediately accrue and be collected a tax as herein provided, on all sales, or agreements to sell, or memoranda of sales or deliveries or transfers of shares or certificates of stock in any domestic or foreign association whether made upon or shown by the books of the association, company or corporation, or by any assignment in blank, or by any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale," etc.

The Attorney General contends that the original issuance of stock is a transfer within the meaning of this act, and that the certificates of stock thus issued are required to have upon them the stamps specified in the act. With this contention we are unable to agree. Authority is not needed to the proposition that a tax will not be held to be imposed upon property, except by language clearly indicating the intent of the Legislature to render the same subject to the tax. The language used in this section, would seem fairly to exclude the original issuance of the stock, by the use of the words "transfer" and "sale," and the failure to specify that the tax should be imposed upon the issuance of the certificates. A sale or a transfer cannot, except by forced interpretation, be held to include an original issuance of certificates, which are simply evidence of the interest of the subscribers in the corporation. Until those certificates are once issued, they cannot be made the subject of such sale or transfer as to bring them within the provisions of the act requiring them to pay the tax.

It is argued that the statute refers to instances where the transfer is indicated simply upon the books of the company, and not by the transfer of certificates already in existence, and that it was intended thereby to include the original issuance of the stock. But it is not infrequent that corporations exist without the issuance of stock, and without any paper showing the interest of the subscribers, other than a minute thereof upon the books of the company. It is clear to my