129 N.Y.S. 1089 | N.Y. Sup. Ct. | 1911
Plaintiff demurs to fifteen separáte defenses interposed in an action for libel upon the ground that each of them is insufficient in law on the face thereof. The complaint alleges three causes of action, to each of which the defendant sets up five separate defenses. The first cause of action is based upon an alleged publication on April 29, 1910, in defendant’s newspapers of a report of a speech delivered by Mayor Gaynor, the mayor of the city of Mew York, at a joint banquet of the “Associated Press ” and the
In the report complained of, after stating that Mayor Gay-nor had said “ a newspaper publisher or manager who is out only to cut throats is a shameful spectacle,” the complaint purports to quote further from said speech as follows: “ Let me explain this by an example. Only a short time ago, on the 15th of this month, W. R. Hearst printed in his principal newspaper the facsimile of a $48,000' warrant drawn upon the city treasurer, with headings and an article' in which the warrant was charged to the account of the present mayor. In it it was maintained I had fixed the amount and paid it. The facsimile is printed to prove this. In this facsimile the place where the date should be is left vacant. When you look at the original, which I have also here, you can see plainly the date ‘ Dec. 31, 1909.’ Furthermore, you see on the original that the certification through which the claim became binding upon the city, was dated December 29. This date is also missing on the facsimile. In plain words, two crimes, punishable by State’s prison, namely, fraud and forgery of a public document, were committed in the zeal of this newspaper publisher (meaning the plaintiff), in order to hurt the Mayor of the City of Hew York. When, two or three days later, he heard that members of the grand jury had taken cognizance of the matter, he published the excuse that the dates in the original had been so faint that they did not show in the photographic reproduction. You see in the original that the date is plainer than all the rest. The truth is —■ as I have been assured — that the dates were routed out of the plate by a machine. A view of the warrant as falsely printed here shows that this also has been done with the date of December 29. I do not call your attention to this mean crime because I am embittered by it. A public officer must learn, to suffer patiently. It is high time that these forgers and calumniators were in prison, and the day is not far off when some of them will be there.”
It is also alleged “ that the charge in said publication contained, that the plaintiff had been guilty of the crime of forgery and falsification of a public document, was false.”
Aside from the incorrect facsimile referred to, the headlines of the article published in plaintiff’s newspaper states: “ One of the administrator’s first acts is to fix award for the chief nominator of the man who now is mayor,” and then proceeds with particularity to detail that an alleged exorbitant claim of $48,000 for legal services, which was the subject of the controversy between the mayor and plaintiff’s newspaper, had been audited in December, 1909, during the administration immediately preceding that of Mayor Gay-nor’s; that the then comptroller’s office drew the warrant for the claim on December thirty-first; that the warrant was sent along the customary course to the mayor’s office and signed by the mayor’s acting clerk (referring to the previous Mayor McClellan’s clerk); that it was then sent to the city chamberlain, James J. Martin, for final signature, without
The article in effect charged Mayor Gaynor with having permitted this alleged excessive bill to be paid in consideration of political obligations and of benefits and services rendered to him at the hands of the recipient of the check for $48,000, and that, had he desired, he could have prevented its payment. It was to this charge that- Mayor Gaynor felt called upon to reply. The only statement in Mayor Gay-nor’s speech, so far as the pleadings show, which refers to his alleged connection with the transaction is the following: “ I need not say to you that the indebtedness for which this draft was drawn was incurred during several years before the present members of the city government were elected, and that it was audited and made a fixed and legal obligation of the city before we took office, instead of any of us ‘ fixing ’ the award as the article says.” The other portions of the speech relevant to this issue are directed to the publication of the facsimile warrant with the omitted dates and the alleged libelous utterances against the plaintiff.
In determining the sufficiency of this defense the language of the publication “ is to be construed in the sense and as it would be understood by persons generally, giving to the words their ordinary meaning.” Brush v. Blot, 16 App. Div. 80. Applying this test to the language of the publication, I am of opinion that the belief would be created in ordinary minds that the plaintiff had been guilty of the crime of forgery in its recognized legal sense. Aside from the
It is, therefore, important to determine in this case whether the admittedly false charges of forgery and falsifi
The insufficiency of the second defense of partial justification necessarily follows from the foregoing discussion. The defendant does not attempt to justify the charge of forgery, but simply pleads that the date of the warrant was intentionally suppressed by the plaintiff in the facsimile reproduction published ini plaintiff’s newspaper; and this, as has already been observed, may not be held sufficient justification of the libelous charges.
The third defense in mitigation of damages must also be deemed insufficient. In this defense it is pleaded that the defendant received the report of the speech published by it from a reporter or news agency upon which it was accustomed to rely for correct information, and which it had found uniformly reliable and correct; that it accepted the said report, relying upon the reporter or news agency and believing the news items and each and every part thereof to be true, and without knowledge that it was untrue; and that it published the said speech without malice. It will be
The demurrers to the fourth and fifth defenses involve essentially the same question and may be conveniently considered together. In these defenses it is alleged in substance that the plaintiff caused the alleged libel of which he complains to be published in the New York American and the New York Evening Journal, two newspapers -alleged to be controlled by him, and that he also caused -a corporation known as the Hearst Syndicate, of which it is alleged he is the owner and principal stockholder, to sell the alleged libel as an item of news to various newspapers published in the . city of Hew York and elsewhere. It is.well settled that, in determining the amount of damages where the publication is libelous per se, the jury has the right to consider the mental suffering which may have been occasioned to the plaintiff by the publication. Van Ingen v. Star Co., 1 App. Div. 429, 433. In 16 American and English Encyclopedia of Law (at p. 1101), it is said: “It cannot be disputed, that it is open to the defendant to show also matters which legitimately tend to establish that the actual injury sustained by the plaintiff is not so great as he would make it appear, and thus reduce the amount of actual damages.” The republication of the article in plaintiff’s newspapers and its sale to others may, it seems to me, be a matter for the consideration of the jury in determining the extent of
For a second cause of action, the plaintiff reiterates the publication of the article which forms the subject of the first cause of action, and alleges that, upon the 30th of April, 1910, the defendant published in its newspaper an article commenting upon the speech of Mayor Graynor in refutation of the attack of the plaintiff upon him and in the course of which reference is made to the “ nefarious methods used by sensational papers to throw suspicion on the motives of people whom they do not like and who are not willing to further their schemes.” The plaintiff further alleges by way of innuendo that the said publication falsely charged and sought to convey to its readers the meaning that the charge of felony against the plaintiff in the publication of the defendant on April 29, 1910, was true, and had been so proved by subsequent investigation, and that the accusation of the plaintiff against the mayor, that he had failed to prevent the payment of the check, was a false statement, and that the plaintiff had lied and misrepresented the facts concerning it, and that the mayor had nothing whatever to do with the payment of the.warrant.
The first defense of privilege must be held insufficient. This is pleaded as a complete defense and must, therefore, contain all that is necessary to answer the entire cause of action. Sbarboro v. Health Dept., 26 App. Div. 177, 179.
The meaning assigned to a publication by innuendo is an issuable fact. Hollingsworth v. Spectator Co., 53 App. Div. 291. The defendant may deny that the defamatory matter bears the assigned meaning and justify it in its primary sense only. Morse v. Press Pub. Co., 49 App. Div. 375, 378; Bower on Defamation, 93,. 94, The defendant, how
The second ' defense of partial justification is, I think, sufficient. If the jury should find that the plaintiff intentionally suppressed the date of the warrant in order to give false color of support to his attack upon the mayor, or that the facts upon which the plaintiff charged the mayor with the responsibility for the payment of the claim were unfounded, then they might reasonably find that the plaintiff had misrepresented the facts concerning the warrant and thus falsely asserted the mayor’s responsibility therefor.
The third defense in mitigation of damages should be held sufficient. This defense is substantially to the same effect as the third defense to the first cause of action. If the defendant received the report of the mayor’s speech from a news agency or a reporter which it had uniformly found reliable and correct, and published such report in the belief that the facts therein contained respecting the suppression of.the date of the warrant were true, and further believed that the attack .upon the mayor was unfounded, in view of the circumstances therein set forth, this may tend to mitigate the damages arising out of some of the alleged libelous charges attributed by the innuendo, to wit, that the plaintiff lied and misrepresented the facts of the matter and falsely asserted the mayor’s responsibility for the payment of the claim. Robinson v. Evening Post Pub. Co., 39 App. Div. 525, 528, 529.
The fourth and fifth defenses to this cause of action are identical in language with the like defenses interposed to the first and second causes of action. It is not claimed, however, in either of these defenses that the publication which is the basis of the second cause of action was either republished in plaintiff’s newspapers or resold by him to other newspapers.. It was the evident theory of the pleader that
In the third cause of action the plaintiff realleges the libels embraced in the first and second causes of action and then alleges a publication in defendant’s newspaper on May 2,1910, referring to the charges of felony by Mayor Gaynor, already discussed, in which the following statement appeared: “Proven forgeries, you know, are for him (meaning the plaintiff) nothing but ‘ quibbles.’ ” The first defense of privilege to the third cause of action cannot be sustained. Considered merely as a repetition of the original charge made in the mayor’s speech, it is defective for the reasons already pointed out in the discussion of the similar defenses to the first and second causes of action; but it is also insufficient'upon a further ground. The defendant does not comment upon the speech of the mayor or state any fact in relation thereto, but asserts and declares upon its own responsibility that the charge of forgery was proven. In Odgers on Libel and Slander, 193, it is said: “ But if, in repeating the statements of the speaker or witness, the writer expressly or impliedly warrants the accuracy of. such state
Under the principles laid down in the discussion of the second defense interposed to the first cause of action, the demurrer to the second defense of partial justification must be sustained; and for the reasons stated in considering the demurrers to the similar defenses interposed to the first and second causes of action the demurrer to the third, fourth and fifth defenses in mitigation of damages must be sustained.
Costs are awarded plaintiff, with leave, however, to defendant to serve an amended answer upon payment of costs.