Cook v. Mirsky

Townley, J. Dr. Frederick A. Cook, who claimed in 1908 to have discovered the North Pole, is suing the defendant Encyclopedia Britannica, Inc., because of the following statement in volume 1 of Britannica, Jr.: “ Cook, Dr. Frederick A. (1865- ). American surgeon and explorer claimed to have reached North Pole with two [497] Eskimos in 1908, a year before Peary; claim universally rejected; wrote ‘ To the Top of the Continent.’ ” The original complaint was presented to this court. (Cook v. Mirsky, 249 App. Div. 394.) We said concerning this alleged libel: “ Surely, in a matter involving scientific achievement it may be stated that a claim of discovery has been either disputed or rejected without imputing fraud.” We gave leave to serve an amended complaint but we are unable to find that the plaintiff has pleaded any facts in the amended complaint in relation to the appellant, which establish that the article is in any respect libelous. One of the primary meanings of the word “ reject,” as given by the Oxford Dictionary, is refused to credit; in other words, all that the defendant has said of Dr. Cook’s claim is that it is universally disbelieved. To say that any superseded scientific hypothesis or claim is universally disbelieved carries with it no imputation of wrongdoing to the author, sponsor or discoverer thereof. The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion of the defendant-appellant to dismiss the second amended complaint as to it granted, without leave to replead. Martin, P. J., Cohn and Callahan, JJ., concur. Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted.