204 Misc. 998 | N.Y. Sup. Ct. | 1953
Two plaintiffs, Frank J. Stella and Anne K. Toomey, have separately sued in libel. Their actions are grounded on the publication of the same article and are against the same defendants, James J. Farley Association, Inc., Lawrence P. Cuccia, J. & W. Newsprinters, Inc., Maurice Rodesk and James Gr. Donovan. Three of the defendants (Association, Cuccia and Donovan) move, on affidavits, to dismiss the complaints pursuant to subdivision 5 of rule 107 of the Rules of Civil Practice, upon the asserted ground that the actions are barred by the Statute of Limitations. Association and Cuccia were served with process on August 17, 1952; Donovan on August 18, 1952. The statute requires that the suits should have been instituted within one year after the cause of action arose (Civ. Prac. Act, § 51, subd. 3). A cause of action for libel arises when there is publication (Restatement, Torts [Defamation], § 577). The offending article was printed in a paper called the “ Yorkville Democrat ”, published by the defendants and dated August 21,1951.
Offhand, the issue thus presented by this motion would seem simple and easy of immediate solution. Plainly, on the basis of the calendar dates mentioned the actions must have been commenced within due time. But the law as of now is clear — the date of “ publication ” of an alleged libel is not determined by or even related to the printed date on the printed matter, and may well have been days or perhaps weeks before that date. I should have supposed — as an original proposition — that if one issues a libelous article and expressly dates it August 21, 1951, the person defamed by the article ought to be able to rely upon the printed date so fixed by the publisher himself as the date of publication. Certainly it may reasonably be assumed that circulation was intended and that it was had on that date. Indeed, in another action, based upon the same alleged libel instituted by the same plaintiffs against James J. Farley individually and one Arthur Simpson (both of them officials of the defendant Association) the answers (prepared by the defendant Donovan as their attorney) admitted that the publication of
One possible result of the present rule might be the granting of immunity to a shrewd and malevolent defamer who could expressly postdate his libelous article with the preconceived intention of misleading the defamed person as to the time of publication — unless forsooth a new cause of action were created to protect against such a situation. The claimed libelous material here appears to have been authored, printed and circulated between August 11 and 20, 1951; and the present rule completely and entirely concentrates in the defendants exclusive knowledge and control of all of the elements of proof as to the precise time when the cause of action accrued to the plaintiffs — and that accrual is not affected by any awareness on the plaintiffs’ part. My proposed rule, it seems to me, is fair; and, being simple of application, would avoid the tortuous presentation and analysis — necessary upon a trial of this issue — of the various processes and stages in the production and distribution of printed material: whether participated in by author, stenographer, typist, editor, rewrite man, linotype operator, printer, deliveryman, postal clerk and postman — before reaching the ultimate recipient. More important, perhaps — since aggrieved persons would be able to rely upon the precise, fixed and publicly known date of publication — the adoption of my view would result, I think, in the not too hurried commencement of actions sounding in libel, for prospective plaintiffs could with security permit themselves for a definite while to be affected by the cooling-off periods so useful in assuaging mental anguish, moral anger and spiritual hurt — probably the basic motivating factors behind most lawsuits grounded in claims of defamation.
The problem here, therefore, is, when, under all the facts in this case, was there such “ publication ” by the moving defendants as to give rise to a cause of action against them, and thus be the basis of the commencement of the running of the Statute of Limitations? The present actions having been instituted as against the defendants Association and Cuccia on August 18, 1952, and as against the defendant Donovan on August 19,1952, was such commencement timely under the facts ? The litigants have presented and argued the issues as if all of the moving defendants must stand or fall together. I do not (as a calendar matter) so conceive the issue. I point out — for one thing — that, in computing the time of the running of the Statute of Limitations, the day of publication is excluded (General Construction Law, § 20; Tismer v. New York Edison Co., 228 N. Y. 156; Metropolitan Life Ins. Co. v. Schmidt, 299 N. Y. 428); and — for another — that if the date upon which these actions were required to be instituted fell on a Sunday, process could have been served on the following business day (General Construction Law, § 25-a; 1952 Report of N. Y. Law Revision Comm., N. Y. Legis. Doc. No. 65 [D]). The result is that, if publication by a
In the spring and summer of 1951, the plaintiff Stella was a candidate for Democratic district leader in the Eighth Assembly District North of New York County. The plaintiff' Toomey was Stella’s coworker and supporter. Stella’s opponent was the incumbent, James J. Farley. The primary election was to be held in the afternoon and evening of August 21, 1951. A committee supporting Farley had been set up, and its active members consisted, among others, of the defendants Donovan and Cuccia, as well as officers, district captains, workers and members of the defendant association. As part of the Farley campaign, it had been decided to prepare, write, issue, pay for and distribute a four-page special edition of the so-called “ Yorkville Democrat ”, to support the Farley cause. The Farley adherents decided to place the paper in the hands of every enrolled Democrat entitled to vote in the primary election by personal distribution throughout the district and by mailing a copy to each enrolled Democrat residing in the district.
The “ Yorkville Democrat ” was prepared and composed by the members of the campaign committee, including Donovan. The articles therein contained were written during the week ending August 11,1951. They were typewritten by one Mary F. Devery, coleader of the association, by August 14th. In pursuance of Donovan’s instructions, the typed copy was delivered, on or about that day, to the printer (the defendant Newsprinters, Inc., not a moving party here), after arrangements for the
During the entire day of August 17th, scores of men and women — captains, workers and members of the association — under Cuccia’s supervision and direction, inserted about 15,000 copies of the paper in unsealed previously-addressed envelopes for mailing. Stacks of the literature were on the tables at the headquarters, to be picked up and read by those who came in during that day and evening. Throughout the whole of that day, August 17th, from early morning to late in the'evening, as the workers at the clubhouse stuffed the printed material into the envelopes, these persons and others read the claimed libelous article. Anyone who wanted copies to take them for circulation throughout the district was encouraged to,take and distribute them. Hundreds upon hundreds of copies were taken and disseminated by that method on August 17th. Some were dropped in stores and passed around on the street corners throughout that day and evening. The 15,000 unsealed envelopes (with the material enclosed) were claimed by the defendants to have been ready for delivery for third-class mailing to the Lenox Hill station of the post office at 10:00 p.m. of Friday, August 17th. They were (as alleged by the defendants) delivered and left at that station by eleven o ’clock of that same night, and the attendants at the sub-station took them into one of the “ back rooms and the last we (the representatives of the moving-defendants) saw of them was when the postal employees were covering them up with canvas covers ”. The plaintiffs, on the other hand, claim the delivery to have been on Saturday morning, August 18th. An issue of fact has also been raised as to whether payment of the postage was made at the sub-station or at the general post office in Manhattan; but it is conceded by the defendants that the postage therefor was not paid until
The defendants contend (and cite authorities assertedly in aid of their argument) that the dictation of the alleged libelous matter to the stenographer and its subsequent transcription by her was the first publication (Ostrowe v. Lee, 256 N. Y. 36); that the second publication took place when the transcribed copy was delivered to the printer (Youmans v. Smith, 153 N. Y. 214); that the third was the distribution of the printed matter to the campaign workers (Taylor v. Church, 8 N. Y. 452); that the 'delivery of the papers in unsealed envelopes to the post office was the final stage (Ostrom v. Safir, 165 Misc. 647; Hartmann v. Time, N. Y. L. J., April 20, 1945, p. 1503, col. 1); that on the basis of the so-called “ single publication rule ” (most recently expounded in Gregoire v. Putnam’s Sons, 298 N. Y. 119, 127) all of the subsequent acts of publication related back to the first; and that since the first publication occurred on or before August 11, 1951, and since the suits were not instituted until August 18 and 19, 1952, they are barred by the Statute of Limitations. There are other arguments presented by the proponents of the motion which I shall later consider, but I want at the outset to make clear that I am not at all persuaded by this contention of the defendants. It is plain that they entirely misread the scope of the “ single publication rule ”.
Generally, the communication of a libel (to a person other than the one defamed) constitutes a publication in the eyes' of the law, and each distinct publication of the libel gives rise to a separate cause of action. (Woods v. Pangburn, 75 N. Y. 495; Roberts v. Breckon, 31 App. Div. 431; Weston v. Weston, 83 App. Div. 520; Union Associated Press v. Heath, 49 App. Div. 247; Taylor v. Friedman, 214 App. Div. 198; Seelman on Law of Libel and Slander, §§ 121, 128; Cooley on Torts [4th ed.], Vol. 1, § 137). True, insofar as newspaper, magazine and book publishers are concerned, an exception (to which I have earlier referred) was created to the general rule that one who publishes a libel is accountable for each separate publication of that libel. That exception is known as the ‘ ‘ single publication rule ”, and is to the effect that after the initial general receipt
Assuming that the " Yorkville Democrat ” is a periodically issued newspaper, I hold that the date of ' ' publication ’ ’ within the meaning of the " one publication rule ” is not the date its contents were dictated to a stenographer in preparation for the printing of the paper, nor the date of the transcribing of her notes, nor the date when the article was printed, nor the date when it was read by persons engaged in inserting the copies of the paper in pre-addressed envelopes for mailing to those for whom the paper was published, nor the date of delivery to one who himself receives the material for purposes of mail distribution. If a plaintiff claiming to be libelled by the publication of a newspaper is to be limited to a single cause of action based upon a single date of publication — and subsequent issuance is not to give rise to a new cause of action — that date should in my view be the date when the newspaper is received by the general public, regardless of the fact that various persons may have read the libel as an incident to the preparation and printing of the paper and its distribution to desired readers.
Moreover (although as part of one general plan), there concededly were two specific bulle distributions —- one in person and one by mail, a maximum of 10,000 copies by the first method, and about 15,000 or so by the second. Each seems to have been a “ conscious independent ” act of publication. (Seelman on Law of Libel and Slander, § 130.) There was certainly a separate affirmative publication by mail, an intentional effort to have a substantial number of readers receive the paper. In such case I am of the view that the Statute of Limitations begins to run anew, and that there is no relation back to the first act of bulk circulation on the basis of the “ single publication rule ”.
Furthermore, there is no precedential mandate that the “ one publication rule ”, first made applicable only to newspapers and magazines — and then by a closely divided court extended to
The first publication of the libel by the moving defendants occurred on or before August 11, 1951, at which time the stenographer had transcribed her notes (and thus read them), as dictated by Donovan and others, and at which time she had typewritten and reproduced longhand drafts (see Ostrowe v. Lee, 256 N. Y. 36, supra). The publication consisted in her reading her notes and in reading, typing or copying the articles written in longhand by Donovan and others. This libel is barred by the Statute of Limitations. A republication of the libel took place on August 14th, when, at the direction, procurement and instigation of the moving defendants, the typewritten articles were delivered to the printer, and the employees of the printer read them in order to set up the type to make proof (See Taylor v. Church, 8 N. Y. 452, supra). This libel is also barred by the statute. The next publication took place on August 17, 1951, when the completed papers were delivered to the clubhouse of the association with the expectation that the defamatory articles would be read by some third persons, and which result actually followed on that same day (See Youmans v. Smith, 153 N. Y. 214, supra). That publication is barred as against Donovan only. A fresh publication of the libelous article oc
The next question remaining to be determined is when publication took place of the copies of the " Yorkville Democrat ” which were mailed. Defendants claim that over 15,000 copies were left in a branch post office on Friday, August 17, 1951, before 11:00 p.m. Concededly, however, no fee was paid to the postal authorities until Saturday morning, August 18th, after the cashier’s cage had opened. The opposing affidavits state that an investigation by plaintiffs ’ attorneys revealed that the 15,000 copies were delivered to the post office sub-station on August 18th at about 8:30 a.m. ; that no mail was ever received by that station after 6:00 p.m., nor could any be deposited after that time; and that it would be impossible to deposit mail at night and pay for the postage the next day. In my view, whichever state of the facts is accepted, the act of delivery to the post office for mail distribution is not “ publication ”. Had the post office building containing the mailed copies burned down on Friday, August 17th, or Saturday, August 18th, before the copies left the building for delivery to the mail recipients — clearly none of the mailed copies could be held to have been published and no cause of action could have accrued to the plaintiffs on the basis of the mailed copies.
The fact that the envelopes were unsealed is immaterial, and I reason it thuswise: There is no publication of a libel unless the writing is read by a third person. (Weidman v. Ketcham, 278 N. Y. 129; Youmans v. Smith, 153 N. Y. 214; Ostrowe v. Lee, 256 N. Y. 36; Restatement, Torts, § 577, and cases hereinbefore cited.) There can be no libel — because of no publication — when a defendant communicates the defamatory statement to the person defamed in a sealed envelope. (See Weidman v. Ketcham, supra; Schaller v. Miller, 173 App. Div. 998; Lyle v. Clason, 1 Caines [N. Y.] 581; and cases above cited.) Nor are the sending and receipt of a writing, in an unsealed envelope, to the person defamed, a publication of the writing in the absence of a showing that it was read or heard read by someone other than
The case of Youmans v. Smith (153 N. Y. 214), relied upon by defendants for the proposition that the date of publication was, at the very latest, the day of mailing of the 15,000 or so copies, is, in my opinion, authority to the contrary. In that case the question before the court was whether the defendant, a printer, was correct in contending that there had been no publication whatever by it because it merely printed the libelous matter for a customer, the author thereof. No question of what constituted the date of publication was presented for decision. In holding that there had in fact been a publication the court did say (p. 218): ‘ ‘ Printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person,” but it added the important qualification “ provided that result actually follows.” (Italics supplied.) I do not believe that the court intended to declare that the date of publication is the date of delivery of the libelous matter to a person whose duty it is to attend to and effectuate its dissemination.
It is to be noted further that the question as to when these 15,000 copies were mailed out, received and read by the addressees is one of fact which cannot be decided upon the papers before me. This question should be reserved for the trial court and, depending upon its determination, Donovan’s defense of the Statute of Limitations as to that phase of the case will stand or fall. If it be determined as a fact that the copies were mailed out on August 17th as alleged, and that they (or at least a substantial part of them) were received and
The motion is denied, but, in pursuance of rule 108 of the Rules of Civil Practice, the defendants may set up the defense of the Statute of Limitations in their answers. Thereby they may have the opportunity, if they so desire, to submit proof as to the character of the “ Yorkville Democrat ” insofar as the “ one publication rule ” is concerned, as to the number of copies distributed by hand and when, as to the date that the mailed copies substantially reached the enrolled voters, and as to any other material facts in the premises. Order signed.