Opinion
August 1, 1961
Appeal from an order of the Supreme Court, Franklin County, dismissing the complaint for failure to state facts sufficient to constitute a cause of action in libel. Respondent, publisher of the Watertown Daily Times, printed an editorial in its issue of June 13, 1959 criticizing appellant, the District Attorney of Franklin County, for excluding the press from a pretrial hearing of a St. Regis Indian accused of killing a State Trooper. Appellant contends that the editorial injured his professional reputation by falsely accusing him of improper conduct toward the accused and thus violating his oath of office as District Attorney and as a member of the Bar of the State of New York. The test to be applied is whether the editorial as a matter of law can be found to be without defamatory import ( Balabanoff v. Hearst Consolidated Pubs., 294 N.Y. 351). Any determination of this question must be considered in light of the recognized right of free comment by the press on matters of public interest especially where public officers are involved ( Hoeppner v. Dunkirk Print. Co., 254 N.Y. 95; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N.Y. 106; Tanzer v. Crowley Pub. Corp., 240 App. Div. 203). While admittedly the article is unfair and inaccurate, there being no reference to the propriety of appellant's action under section 203 of the Code of Criminal Procedure, the comment in this instance in our view does not go beyond that which a public official, even when performing his duties in a legally justified manner, must expect to endure from an uninformed editorial writer. On the particular facts of this case we are constrained to agree with the following excerpt from respondent's brief: "The mere fact that an editorial writer is wrong or lacks knowledge of the law and makes a criticism, which is inaccurate, does not make such criticism libelous". Since the complaint did not allege special damages and the court does not consider the editorial libelous per se the complaint was properly dismissed at Special Term. Order affirmed, without costs. Bergan, P.J., Gibson, Herlihy and Reynolds, JJ. concur.