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MITCH MILLER v. CARL RADIN ET AL. (07/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


*fn*: July 21, 1969.

MITCH MILLER, RESPONDENT,
v.
CARL RADIN ET AL., APPELLANTS

Appeal by defendants from an order of the Supreme Court, Rockland County, dated September 19, 1968, which denied their motion to dismiss the complaint on the ground that it fails to state a cause of action.

Rabin, Acting P. J., Hopkins, Benjamin, Martuscello and Kleinfeld, JJ., concur.

Plaintiff commenced this action seeking damages for an allegedly libelous campaign pamphlet which stated that he "needs Paul Mundt and his privilege-Dispensing, down-zoning Gang", whereas "The People need" a second group, and advocated that the electorate "Vote People Not Privilege". The complaint alleges that plaintiff is a property owner in Clarkstown and has, since 1960, made several unsuccessful petitions to have his properties rezoned and that, since 1960, Mundt has been the Town Supervisor. Innuendo is pleaded that the pamphlet conveyed the meaning that plaintiff had sought, received and continued to seek special privileges for personal gain contrary to the welfare and needs of the people of the town. In our opinion, the pamphlet, on its face, is not defamatory. Further, although libel by extrinsic fact is actionable per se without showing special damages (Hinsdale v. Orange County Pub., 17 N.Y.2d 284) the pamphlet is not susceptible of a libelous meaning. The innuendo pleaded conveys a meaning not found in a fair reading of the pamphlet. (Foot v. Pitt, 83 App. Div. 76; Kahn v. Shaw, 15 A.D.2d 821.)

Disposition

Order reversed, on the law, with $10 and disbursements, and motion granted.


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