190 A.D. 490 | N.Y. App. Div. | 1920
Appeal by plaintiff from an order granting a motion to vacate an order of arrest. The action is for libel and the charge is that on November 18, 1918, the defendant falsely and maliciously composed and published or caused to be published in the New York Herald and the New Orleans Picayune defamatory matter to the effect that plaintiff had prior to January 27, 1917, conspired with one Tinoco and others to foment a revolution and overthrow the constitutional government of Costa Rica. The learned Special Term vacated the order of arrest upon the ground that the defendant did not publish or cause to be published the alleged defamatory matter (109 Misc. Rep. 175).
The order of arrest was obtained upon the complaint herein and the affidavit of the plaintiff. The order was made October 10, 1919, and fixed bail at $25,000, which was furnished. The complaint sets forth the alleged libel and contains allegations usual in libel actions. The affidavit sets forth the composition and publication of the libel and avers that plaintiff was informed by one Turner, a reporter for the New York Herald, in which the alleged libel appeared, that the matter was given by the defendant to Turner with the request that it be published in that newspaper. In support of the motion to vacate the order the affidavits of Turner and the defendant were submitted. The former denied that defendant had requested the publication and made the following statement, after saying he had never met defendant until some days before the publication:
“ Mr. Gonzalez gave me an appointment and I called upon him at his apartment in New York and discussed the said rumor and other Costa Rican matters. In the course of the conversation regarding such matters said Gonzalez showed me certain documents. I examined said documents and told Mr. Gonzalez that I should like to use them for an article or articles on Costa Rica. I took some of said documents. A few days later I telephoned Mr. Gonzalez and requested him to deliver the rest of said documents to me, which he did.”
The rumor referred to related to the employment of William J. Bryan as counsel for the Costa Rican government by said Tinoco. The affiant then went on to say that after examining the documents and conferring with other persons in reference
We think upon these facts it was error to vacate the order of arrest on the ground that defendant had -not published or caused to be published the defamatory matter. The learned Special Term in its opinion relied upon the case of Schoepflin v. Coffey (162 N. Y. 12). In that case the evidence showed that the defendant orally defamed the plaintiff in the presence of two persons, who were reporters. They thereafter caused the defamatory matter to be printed in various newspapers. The court held that the defendant was not responsible for the voluntary and unjustifiable repetition, without his authority or request by others, over whom he had no control. It cannot be said in the case at bar that the matter complained of was published without defendant’s authority. He was told by the reporter that the writings were going to be published in articles to be written by him, and on a second occasion even sent more documents to the reporter in response to the latter’s telephone message. The defendant not only knew that he was giving information to a reporter of a newspaper, but was advised before giving it that such information was requested for publication. (Weston v. Weston, No. 2, 83 App. Div. 520.)
It is urged by the respondent that the order of arrest was properly vacated because the affidavit upon which it was procured was insufficient under section 557 of the Code of Civil Procedure. Attention is called to the fact that while it is averred that the information as to the publication was derived from Turner, the affidavit of the latter is not annexed, nor
The conclusion must be reached that the order of arrest should not have been vacated. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and the order of arrest reinstated.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and the order of arrest reinstated.