285 A.D. 199 | N.Y. App. Div. | 1954
Active in union labor affairs, plaintiff had in recent years been general organizer and international vice-president of Hotel and Restaurant Employees and Bartenders Interna^
The first cause of action alleges the following publication in the local’s paper: “Evidence and information have reached us which convince us that your presence in office is a real detriment to this Local Union and its present leadership, and also lead us to believe that a great deal of the difficulty which this local union is encountering is due to your advice and activities.” The court below found that such statement did not expose plaintiff to contempt, ridicule or aversion, and that it was not libelous per se. Clearly the words are not libelous on their face. They state a belief on the part of some members of the local that plaintiff’s presence in office is a detriment to it and its leadership and that his advice and activities have contributed to certain difficulties encountered by the union. The statement is critical and forthright but, read alone or in context with the extrinsic facts pleaded, cannot be said to be libelous. In that respect the decision of the court below was correct.
The publications complained of in the remaining causes of action are of different import. In the publication of the formal charges plaintiff was accused of violations of the by-laws of the international and local unions, of illegally publicizing the affairs of the local, of disrespect to it, its officers and members, of attempting to undermine it and to “ injure the wages and jobs of the members by creating dissension and sponsoring false charges ” and of discussing union affairs with employers and conspiring to bring the union into disrepute and to slander it
Such privilege is not absolute, but the law recognizes a qualified privilege which may attach to communications within a business organization and such groups as membership associations, churches, lodges and labor unions. A qualified privilege is limited to “ good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.” (33 Am. Jur., Libel and Slander, § 126; Eestatement, Torts, §§ 593, 599.)
This is not the occasion to attempt to fit the alleged libels to the stated patterns. Privilege is a defense to be pleaded and proved. (Ostrowe v. Lee, 256 N. Y. 36, 41; Kennedy v. James Butler, Inc., 245 N. Y. 204, 207; Schauder v. Weiss, 274 App. Div. 940, 941.) Moreover, plaintiff alleges malice, which destroys a qualified privilege. (Andrews v. Gardiner, 224 N. Y. 440, 446; Seelman on Law of Libel & Slander in State of N. Y., § 272.) In our opinion the second and third causes of action of the complaint should be held to allege facts sufficient to state causes of action.
The order should be modified by striking out the ordering paragraph thereof and substituting therefor the following: “ Ordered, that the defendants’ motion for the dismissal of the first cause of action in the complaint herein be and hereby is granted and the same dismissed on the ground that it does not state facts sufficient to constitute a cause of action, and it is further Ordered, that the motion be and hereby is in all other respects denied, without costs. ” As so modified the order should be affirmed, without costs, defendants to answer the complaint within twenty days from the entry of the order herein.
Foster, P. J., Coon, Halpern and Zeller, JJ., concur.