96 N.Y.S. 629 | N.Y. App. Div. | 1905
This is an appeal from an interlocutory judgment overruling a demurrer to the plaintiff’s complaint. The action is in libel, and the alleged defamatory matter was contained in an article published-in a newspaper, to wit, the New York Evening Post. It is alleged in the complaint, after setting forth that the defendant is a corporation and publishes and circulates a newspaper, that “ the plaintiff is and -for many years has been a resident of the Borough of Man-' hattan in the City of Hew York. Eor many years he has been and is a member and one of the leaders of the Republican Party in the City of Hew York, to which party and the policies, principles and interests thereof he has always been loyal, faithful and true, and as such he has taken a prominent and active interest in the politics of the City of Hew York and of the State of Hew York, and for many years has been, and is, actively and prominently identified
“ ‘ Against Hai.pin et al.
“ ‘ Thomas J. Clarke put rip for Leader in the Ninth District.
“ ‘ Circulars are out in the Ninth Assembly District urging upon. Republican primary voters 6 a few words as to who áre dictating nominations in this district and managing" party affairs,.’ -as follows.: >
*473 -“ ‘ William Halpin, temporarily acting as leader, though only of mediocre ability, surpasses the rest, and will be specially characterized later.
“‘John J. Plunkitt, formerly bartender for ‘Mike’ Curley on Tenth Avenue. ' Later became janitor and porter of the Local Club. Has a job as deputy sheriff by re-appointment óf a Tammany administration. Why ?
“ ‘ J arpes A. Allen, came into the district with a carpet bag arid has acquired property. Always obeys orders. Consult the files of the Evening Post and other reputable newspapers for his record.
“ ‘ Thomas L. Hamilton, personally a nice fellow but politically a light weight. Charity forbids expatiation.
“ ‘ James J. Duffy, the last and least of all. Known as ‘ Kolce ’ Duffy. Absolutely devoid of any knowledge of the customs of polite men. Does .well in business, especially during Tammany regimes. Devotes his time and energy more to assisting the Tammany leaders than to working for his own nominal party. Is reported to be about to join Tammany - openly soon. Apparently knows no more of and cares no more for political principles than he does of the siluiian age in" geology. Mixes in Tammany factional fights, to the detriment of the Republican Party. A most unworthy choice.
“ ‘ To vote for the above is to debauch the party. For decency, honesty and the welfare of Republicanism, vote for Thomas J. Clarke for leader and Henry Clinton Bachus, • W. Henry Godward, and other representative men of principle for county committeemen.’ ”
It is then alleged in the complaint: “ The said article was, by the defendant, unlawfully and maliciously composed, printed and published concerning the plaintiff as aforesaid on or about the 25th day of August, 1904, in the said edition of the said ‘ The Evening Post’ dated August 25th, 1904. The said edition of the said Tlie-Evening Post ’ dated August 25th, 1904, containing the said article was by the defendant on and about the 25th day of August, 1904, widely distributed and circulated throughout the City of Hew Y ork an d oth er portions of the State of H ew Y ork. By means of the said distribution and circulation of the said edition of the said ‘ The Evening Post ’ dated August 25th, 1904, containing the said article,
The defendant demurred to the complaint on the ground that it did. not state facts sufficient to constitute a cause of action.
There is no allegation in the complaint of special damage, and the simple question is whether on the face of the complaint it may. be said as matter of law that the alleged defamatory matter relating to the plaintiff is. libelous yer se, or whether it is necessary that special damage should be pleaded to make it actionable.
It is to be observed at the outset that nothing is said-affecting the private character or the business of the plaintiff outside of political relations, and manifestly the case is not within Moore v. Francis (121 N. Y. 199).
I am unable to perceive that this article can be said, as matter of law, to hold the plaintiff up to scorn, ridicule or contempt as an individual or a private person. He does not claim to have been injured as such. He appears only as a public character and asserts that he has been and is actively and prominently identified with political affairs^ movements and issues; that he held and for many years has held honorable, confidential and responsible positions in the Eepublican party of the city of Hew York and was by the leaders thereof highly respected and trusted as a Eepublican and was by them intrusted with a substantial part of the management of the party affairs, Standing' in that attitude as a public character, his conduct and actions are of course open to criticism. To comment upon the acts or conduct of a public man is the right of every citizen. While every one is entitled to the protection of his reputation from slanderous remarks or libelous articles, whether he is a public or private character, yet it. appears in this case that the plaintiff was referred-to in the-article complained of only in the former relation. A written or printed statement published of and concerning a person which is false- and tends to injure his reputation and thereby
The judgment appealed from should be reversed and the demurrer, sustained, with leave to the plaintiff to amend the complaint on payment of costs in this court; and in the court below Within twenty days after the service of an order to be entered upon this decision.'
Ingraham, Clarke and Houghton, JJ., concurred; O’Brien,P. J., dissented.
Judgment reversed and demurrer sustained^ with leave to plaintiff to amend on payment of costs in this court, and in the court below;