D'Altomonte v. New York Herald Co.

Clarke, J.: I agree with the opinion of Mr. Justice Scott except so much thereof as sustains the demurrer to the first cause of action upon the ground that the article complained of is not libelous. The complaint alleges that the plaintiff was and still is a member of the Italian nobility, being a baron by birth; that he was and still is a member of the Italian Geographical Society of Milan, and a member of American Geographical Society of New York; that at the time of said publication he was of good name, fame and credit and well and favorably known through-' out the world, having been prominent in many endeavors of international scope; that he was a noted professional news [454] paper correspondent, traveler, writer and lecturer of recognized ability, commanding several languages; that from July, 1902, to December, 1905, he was commissioner of police in the Belgian Congo, was for some time chief editor of La Nazione, a daily newspaper of wide circulation published in Florence, Italy; that he. had delivered lectures on African life and politics before the Geographical S'ociéty of Milan and Florence and other audiences; that he had been employed from time to time by the police department of the cityx of New York and by the treasury department of the United States to do work in the investigation of crime and criminals; that at the time of said publication he was well-known authority on criminology and on African life and. politics; that he had written hooks, articles and pamphlets on said subjects which had attained wide circulation; that prior to the publications complained of he had enjoyed an international reputation for honesty, uprightness, integrity, fidelity,.dignity, competency and ability; that he had the acquaintance, friendship and respect of various and numerous business and professional- men of high standing, scientists and scholars throughout the world and had business connection with distinguished persons of various nations; that the article held him up to public «scandal, infamy and disgrace, ridicule and contempt, and to cause him to he believed by his neighbors, associates, friends and persons generally to have been guilty, and that he was guilty of sensationalism and bad taste, and for the purpose of recording a personal adventure to have falsified, and that he had falsified facts and incidents, and to injure and destroy the esteem in which plaintiff as an individual and in his professional calling had been held, and to deprive him of his standing among scholars and professional men; that said article consists of a story purporting to have been -written by plaintiff for defendant’s newspaper, and at the head thereof a short biography of plaintiff; that said story was fabricated by defendant or some person in its employ or by some person from whom it bought said article; that plaintiff is not the author of said story, nor was he ever connected with the persons or incidents mentioned and described; that said story represents plaintiff as describing himself in an absurd and improbable adventure, and exposes him to the natural infer [455] ence, suspicion and belief that he was guilty of sensationalism and bad taste and of falsifying and fabricating facts, incidents, names, places and situations. This article contains a half page illustration and is headed “Stopping a Congo Cannibal Feast. The adventures in the African Forest wherein a young and courageous American is rescued just as he is about to be killed and eaten by savages.” It then gives a short biography of the writer, and states that “ The young American whom D’Altomonte and his party rescued from the cannibals is John Harris Walton, still living in San Paolo di Loando, serving as manager of the Hatton & Cookson Company concessions.” It is • sub-headed, “ By Baron Antonio Benedetti D’Altomonte,” and is written in the first person, “ The affair I dm about to detail occurred,” etc. • I tiling the publication ascribing the authorship of such an article to a man of the standing and reputation which plaintiff claims for himself, admitted by the demurrer, if false and a forgery, is calculated to hold him up to ridicule and contempt and to destroy his influence as a writer and lecturer, and is susceptible of the construction and the consequences placed upon it by the complaint, I think it comes within the spirit of the decisions in Triggs v. Sun Printing & Pub. Assn. (179 N. Y. 144) and Holm v. Holm (146 App. Div. 75). The order appealed from should be affirmed, with ten dollars costs and disbursements to the respondent, with leave to the defendant to withdraw the demurrer and to answer^ within twenty days on payment of costs in this court and in the court below. McLaughlin and Dowling, JJ., concurred; Ingraham, P. J., and Scott, J., dissented in part.