122 N.Y.S. 978 | N.Y. App. Div. | 1910
Lead Opinion
This in an action for a libel. In the year 1907 plaintiff was a resident of the borough of Manhattan, New York, and conducted business therein as a real estate broker and was a member of the Assembly for the thirteenth Assembly district. There was prior to the seventh day of March that year a bill entitled “ An Act to. amend the Greater New York charter, as re-enacted by chapter four hundred and sixty-six of the laws of nineteen hundred and one, relative to the police department,” which was commonly known as the “Bingham Police Bill,” introduced in the'Assembly. On that day the New 'York Times, a daily newspaper published by the defendant, contained an article on the editorial page, the heading of which was in heavy type, as follows:
“ The Police Bill.
“The New York City Police Bill is on the order 'of Third reading in the lower house, and is scheduled to come to a vote this morn*151 ing. To those Republican and Democratic Assemblymen, whether from up State or from this City who are minded to cast their vote against the measure a word, if they are wise, should suffice.
“ The bill is designed to safeguard the lives and property of one-half the State. This is a wealthy city, but just now it is a wrathful city. It is behind Commissioner Bingham in his effort to become something more than titular head of police.
“ There is power' within the city — and it is aroused — with which no single legislator or clique may wish to cope.
“ It is rumored that the bill will be passed by the Assembly and will be killed in the Senate. However the bill may fare, who so registers his vote against it to-day will be noted.”
The bill was reached and passed by the Assembly by an affirmative vote of ninety-two, with forty-seven members, of whom the plaintiff was one, voting in the negative. Pursuant to the editorial announcement herein quoted, the defendant published an article on the editorial page of the Times on the 8th day of March, 1907, headed in heavy faced type, as follows :
“Roll of Dishonob.
“ Despite all opposition, with a vote of 92 to 47, Commissioner Bingham’s Bill reorganizing the corrupt police force has passed the Assembly. Of the 47 adverse votes 32 were cast by Democratic Assemblymen misrepresenting this city, and two by the Kings Republicans, Eichhorn and Yoss, the one an Odell man and the other Inspector Schmittberger’s legal counsel. * * *
“ We are not prepared to say that the sins of thirty four thugs, selected from the thirty thousand criminals that go about this city under police protection, are not of snow-driven purity compared with what these thirty-four Greater New York Assemblymen were tryi/ng and failed to do. They have done what they could to strengthen the league of the police with gamblers, with harlots, with thieves, with all the sources of civil and moral corruption that the ‘ system ’ connotes.”
The plaintiff alleges that these articles were maliciously published of and concerning him, and were calculated to, and did hold him up to scorn, hatred and ridicule, and particularly to the residents of the Assembly district which he represented, to his injury and damage in his business, social standings good name and reputation, in the
“That said editorials were, intended to convey, and did convey to the community at large, the impression that the plaintiff herein was guilty of malfeasance and misfeasance in office, and of conduct in direct variance with his oath of office, and of connivance and illegal co-operation in a corrupt ‘league of police,’ with various criminals and disorderly persons, and that the plaintiff was an accessory to an alleged conspiracy between said police of the City of New York and said disorderly and criminal persons. That the plaintiff in attempting ‘ to strengthen the league of police ’ with said immoral and disordeily persons, had been guilty of acts equal in guilt with the sins and crimes of criminals of this city.”
The plaintiff gave evidence tending to show that he openly, publicly and consistently opposed the bill, not with a view to strengthening any league of the police with gamblers, harlots or thieves, if such league existed, as to which he had no knowledge, but because ,he was convinced that it was unwise legislation; that while all of the newspapers, with one exception, and many civic organizations, favored the bill, it was opposed by one newspaper and by many of his constituents and by others, and that before voting on it he endeavored to ascertain the sentiment of his constituents and found no sentiment in favor of the bill. He offered no evidence, other than the articles themselves, tending' to show malice on the part of the defendant.
This appeal presents but a single question and that is whether the second editorial 'article, herein quoted, exceeded the bounds of fair and honest criticism of a public official, which is privileged or rather permitted in the interest of the public welfare and became defamatory by impugning the motives of the plaintiff in voting against the bill. It is contended in behalf of plaintiff that it charged that his object and purpose in so voting was to strengthen the league to which "reference is made in the article and inferentiálly that he was actuated by unlawful and corrupt motives. The law applicable to this question is perfectly well settled. The only difference of opinionamong the'members of the court arises on the construction of the second editorial. In Hamilton v. Eno (81 N. Y. 116), which is the leading case on the subject in question in
“There are certain communications which are privileged and prima facie excusable because of the occasion; that is, they will not be deemed libelous, though the party making them may not be' able to, prove them to be true, and may in fact be wrong in thinking them to be so. The effect of the privilege is this: That the law will not imply malice from the fact of the publication, and without malice, express or implied, there is no libel. * * *
“The occasion that makes a communication privileged is when one has an interest in a matter, or a duty in regard to it, or there is a propriety in utterance, and he makes a statement in good faith to another who has a like interest or duty, or to whom a like propriety attaches to hear the utterance. (Van Wyck v. Aspinwall, 17 N. Y. 190; Klinck v. Colby, supra;
“We think that the occasion of the defendant’s publication was such as that first stated. The plaintiff had made an official report recommending a-certain kind of street pavement. It was calculated
“ It is, 'therefore, with the report as an official act, and with its author as a public servant, that we are principally concerned. It is apparent that to say off. such a matter from such a person that its statements were dictated by interested persons, and that the author was rewarded for it from their private means, is calculated-to injure the official and private reputation of the author. Now one may in good faith publish the truth concerning a public officer, but if he states that which is false and aspersive¡, he is liable therefor, however good his motives. A person in public office is no less to be protected than one who is a candidate for public office; and the lawof libel must be the same in each case, The public have as much interest in knowing the true character of one who is seeking
“We are of the opinion that the official act of a public functionary may be freely criticised, and entire freedom of expression used in argument, sarcasm and ridicule upon the act itself; and that then the occasion will excuse everything but actual malice and evil purpose in the critic. We are of the opinion that the occasion will not of itself excuse an aspersive attack upon the character and motives of the officer; and that to be excused, the critic must show the truth of what he has uttered of that kind.”
Eecently the Court of Appeals, in Triggs v. Sun Printing & Pub. Assn. (179 N. Y. 144), further elucidated this rule as follows : “ The single purpose of the rule permitting fair and honest criticism is that it promotes the public good, enables the people to discern right from wrong, encourages merit, and firmly condemns and exposes the charlatan and the cheat, and hence is based upon
It follows, from this statement of the law, that if the editorial exceeded the bounds of fair and honest criticism, and was “an aspefsive attack upon the character and motives ” of the plaintiff, it is libelous. It is to be borne in mind that the plaintiff was entitled to have the case submitted to the jury, either if the articles were libelous per se, without any innuendo, or if they were susceptible of the meaning ascribed to them in the innuendo, for if libelous per se it would be the duty of the court to so decide as a matter of law, but if ambiguous and in any aspect of the case the articles are susceptible of the meaning ascribed to them in the innuendo, it would be the duty of the court to leave it to the jury to determine in what sense the words, were used' and would be understood by readers of ordinary, average intelligence, and if they would be so understood that they would be libelous. (Morrison v. Smith, 177 N. Y. 366; Moore v. Francis, 121 id. 199.) The fact that the plaintiff
.It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Scott and Miller, JJ., concurred; Ingraham, P. J., and Clarke, J., dissented.
46 N. Y. 427.— [Rep.
King v. Boot.— [Rep.
Commonwealth v. Clap,— [Rep.
Dissenting Opinion
(dissenting):
In the year 1907 the plaintiff was elected a member of Assembly in the.'thirteenth Assembly district in the city of New York, and entered upon the-discharge of his duties in the Legislature. His ■ course in voting against a certain bill relating to police matters in the city of -New York was disapproved of by several newspapers, including' the one published by the defendant, and it is in consequence of an article criticising his vote in opposition to that bill that it is claimed the defendant published a libel. The plaintiff had been elected to represent the residents of his district in the Legislature, and as such liis official acts were subject to criticism. It certainly is not libelous for the People to-call their representatives to account for official action claimed to be against the best interests of the city ; it is not a libel to allege that a particular vote was against the welfare of the city. ' It is settled-in this State that a citizen has a right to criticize the official acts of public officials. I agree that to say a public official acts disgracefully for private gain
What was said in Triggs v. Sun Printing & Pub. Assn. (179 N. Y. 144) does not apply to the right of the public to criticize one of its representatives. Whether or not this privilege exists I think
I think the court was right in disposing of the question as a matter of law and that the complaint was properly dismissed.
Clarke, J., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.