204 A.D. 142 | N.Y. App. Div. | 1923
Lead Opinion
To affirm this judgment will have the effect of bestowing upon a corporation of the State of New York, described in its certificate of incorporation as “ The New York Civic League,” administrative and judicial functions. Its purpose as set forth in its certificate is as follows: “ To educate and elevate public sentiment along all lines of moral, social and political progress and efficiency but especially with reference to temperance, gambling, Sunday observance, social purity, divorce and the preservation of the democratic principles of our government, and to secure the passage and enforcement of laws along all such lines in the United States, but especially in the State of New York.” The purposes set forth are admirable and commendatory; but it contains none of the characteristics of a detective agency, and the State, by the certificate of incorporation, does not delegate to it any authority to enforce the law nor to engage in the administration of justice. Before the law it stands on the same level as any ordinary citizen. The defendant, by paying one dollar, or as much more as she chose, could and did become a member of this league. As such member, on the 18th day of October, 1918, she wrote to a Mr. Miller, superintendent of said league, a letter in which she said of and concerning the plaintiff: “ Mr. Pecue, who kept a saloon near the railroad crossing, has been and is keeping a disorderly house.” For some reason which does not clearly appear, on the 22d day of October, 1918, she wrote another letter, destination the same, in which she charged the plaintiff as follows: “ Chas. Pecue, Potter Ave., who kept a saloon, is keeping girls for immoral purposes. One was taken to the hospital sick and another taken into the hospital off the street.” These letters were handed by Miller to one West, and by him the libel was handed on to the district attorney of Washington county, and so published to the world. The plaintiff is the father of eight children who, with his wife, lived with him in his home at Granville, N. Y. So far as any specific evidence contained in this record is concerned, none of these charges were true. This action was brought by the plaintiff. The defendant, in her answer, admits that she wrote the letters containing the charges set forth in the complaint, and justifies such acts as privileged. Mr. Justice Hinman does not uphold her contention, as to privilege, to the full
When asked if she knew whether there was any girl at the plaintiff’s on the eighteenth of October when she wrote the first letter she answered: “ I don’t know. * * * I don’t know anything about it.” Again: “ Q. It was easy enough for the person that
Even if the charges made by defendant are to be held as coming under the rule of qualified privilege, in which I do not concur, the last subdivision quoted above applies. (13 Am. & Eng. Ency. of Law, 425, 426.) The only explanation or excuse given for the conceded libelous statements contained in her letter was that she belonged to the league. As to whether that was sufficient to accord to her a qualified privilege was not a question of law for the court; it was a question of fact for the jury. (Byam v. Collins, 111 N. Y. 151; Hamilton v. Eno, 81 id. 122; Grant v. Herald Co., 42 App. Div. 354; Cohalan v. New York Press Co., 212 N. Y. 347; Warner v. P. P. Co., 132 id. 181; Saunders v. Post-Standard Co., 107 App. Div. 84; Payne v. Rouss, 46 id. 315.)
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
H. T. Kellogg, Acting P. J., and Hasbrouck, J., concur; Hinman, J., dissents, with an opinion in which Van Kirk, J., concurs.
Dissenting Opinion
The action is based upon two letters written October 18, 1918, and October 22, 1918, respectively, by the defendant, a member of the New York Civic League, residing at Granville, N. Y., to officers of the league at Albany, N. Y., in which the plaintiff, who had been conducting a saloon in the village of Granville, was referred to as the keeper of a disorderly house. The letter of October eighteenth was addressed to Rev. O. R. Miller, the president and State superintendent of the league. After having received a letter in reply, not from said Miller but from George H. West, the superintendent of the law and order department of the league, the defendant wrote to said West the letter of October twenty-second. At the outset of the trial the plaintiff offered the letters in evidence. Inasmuch as the letters also listed lawless acts charged to have been committed by persons other than the
It is the contention of the defendant, the respondent here, that she should be credited with having asserted her charge as hearsay and not upon personal knowledge. Apparently she so pleads in her answer. The letters are not printed in the record before us and the defendant asks us to take judicial notice of their contents from our own records in the companion case of Pecue v. West (191 App. Div. 620), wherein the same letters were printed in full. To take such judicial notice of facts appearing in the court’s own records is not unprecedented. (Vose v. Yulee, 64 N. Y. 449, 452.) The cause of action here grew out of the act of writing these particular letters. They constituted basic evidence. They were before the court at the trial and the justice presiding was undoubt
The New York Civic League is a membership corporation existing under the laws of this State and one of its lawful purposes, as expressed in its certificate of incorporation, was to secure the enforcement of laws aimed at the suppression of vice. Its principal office was located in the city of Albany, N. Y., and it relied upon its members throughout the State to furnish its officers at Albany with information relative to local conditions. The defendant was a member of this corporation and had been for years one of its ardent supporters. She had been assured by the agents of the league orally and by a bulletin of the league that any communication would be treated as strictly confidential and that her complaint
The law of this case in some, if not all, of its phases has been passed upon by the Court of Appeals in the case of Pecue v. West (233 N. Y. 316). To use the language of Andrews, J., writing in that case (at p. 319) it seems that “ without making the slightest investigation; without stating that he was acting on information which he had not verified or attempted to verify; speaking as of his own personal knowledge, West wrote and sent to the district attorney of Washington county a letter containing: ‘ Charles Pecue, Potter Avenue, formerly proprietor of a saloon, has been and is keeping girls for immoral purposes. One was taken to the hospital sick and another taken to the hospital off the street. The place is in Granville, Washington County, New York.’ ” The court held that in giving such information to a district attorney there was no absolute privilege but at most a qualified privilege; that to justify a recovery in an action for libel, the plaintiff must establish that it was made maliciously and without probable cause; and that such malice may be inferred from a wanton and reckless
If we may consider the full purport of the defendant’s letters in question here, to the effect that she was not communicating false charges “ made as of personal knowledge,” but upon information received by her, it is clear that the communications of the defendant were qualifiedly privileged and that in the absence of proof of express malice by the plaintiff the complaint was properly dismissed. No such proof of express malice was presented by the plaintiff.
We think there is a further difference between this case and that of Pecue v. West (supra). There is a clear distinction between bringing information to a district attorney, a public officer whose duty it is to conduct criminal prosecutions, and giving such information to an officer of the league in question of.which the defendant was a member, where the league officials have agreed to make an independent investigation and to treat the information as simply putting the officials of that league upon inquiry. In the latter case there existed a mutuality of interest, a confidential relationship and arrangement upon which the defendant had a right to rely whereby the officers of the league agreed to make their own investigation and to preserve the communications of the defendant inviolably secret, whereas the district attorney receiving such a statement as he received from West, purporting to set forth a fact, made as of personal knowledge, had a right to assume its truth as the basis of his action. In such latter case malice could be inferred because of the probable publicity to be expected, whereas in the first case there was no publicity contemplated or constructively possible in the mind of the defendant unless further
It has also been said that “ the law itself, relies upon and stimulates private interest as one of its most ready helpers,” and that “ several may lawfully meet and consult to prosecute a guilty person, or one against whom there is probable cause of suspicion; and that associations to prosecute felons are lawful.” (Klinck v. Colby, 46 N. Y. 427, 433.)
We think that in the conduct of the defendant here there was not “ such a wanton and reckless disregard of the rights of another as is ill-will’s equivalent.” (Pecue v. West, supra, 322.) Her conduct was not such that malice might be inferred by a jury, (1) because she had the right to believe that the affairs of the league of which she was a member would be carried on in accordance with its rule and promise to her, which meant that no damage would accrue to the plaintiff unless a complaint were pressed upon proofs other than her statement after proper investigation by the league itself, and (2) because she fairly and in good faith relied on hearsay coming to her from friends whom she knew and upon whose good faith she believed she could rely.
We think this case is distinguishable from that of Pecue v. West (supra), and even to the extent of holding that the communications of the defendant were qualifiedly privileged irrespective of those qualifying portions of her letters tending to indicate that her communications were based upon information received by her.
The judgment should be affirmed, with costs.
Van Kirk, J., concurs.
Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event.