Opinion
March 8, 1907.
Levin L. Brown, for the appellant.
Joseph N. Tuttle, for the respondent.
The complaint alleges that the defendant "falsely, wickedly and maliciously" composed and published, and caused and procured to be published of and concerning this plaintiff, the following letter:
"NEW YORK, Sept. 12, 1905.
"The Rev. Father JOHN COLLINS, "Fordham, St. John's College, "New York City:
"MY DEAR SIR. — When with Mr. Macnamara I last saw you, you informed us that you would interview the young man as to the anonymous letters (the defendant thereby referring to and writing of certain obscene letters received by various persons through the mails and well known to said Father Collins and others to have been so received) and that if there was any further complaints he would be discharged from your institution.
"Since this time, this man has been sent for by the postal authorities, and voluntarily wrote for them, thereby disclosing the authorship of all the anonymously written letters (referring to said obscene letters). At this time all letters (referring to said obscene letters) stopped for a time, only to begin again after the matter had in a sense quieted.
"These letters (referring to said obscene letters) are still being written, three having been received by different persons two weeks ago, and two yesterday. I have now evidence which proves conclusively that the man in your institution and no one else is actually writing these letters (referring to said obscene letters), though no doubt, others are inspiring some of the tents. While one of the assistant district attorneys stated that it was a moral certainty as to who wrote these letters (referring to said obscene letters), still there was not sufficient evidence to proceed against him criminally. This evidence is, however, sufficient, I believe, for you to take some action upon, even if it involved this man's discharge, which possibly might result in stopping the vile practice.
"Please understand that both Mr. Macnamara and myself are absolutely dispassionate in the matter, the man is certainly an entire stranger to me and practically so to Mr. Macnamara, but having shown himself as the author of these letters (referring to said obscene letters), I feel that you will agree with others and myself, that he should be punished. Trusting that with your kind help we may succeed in at least stopping this practice, I am,
"Most sincerely yours, "J. ORMOND GOLDAN."
The complaint then alleges that the "defendant by composing and publishing and causing to be published the above letter meant and charged that this plaintiff had been and was guilty of the crime of sending obscene letters through the mails."
The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and from the interlocutory judgment overruling the demurrer the defendant appeals to this court.
The rule, supported by a long line of authorities, in actions for libel, requires something more than allegations of conclusions of fact; the facts themselves must be alleged from which the conclusion may be drawn. In a case like the present, it is not enough to characterize the anonymous letters mentioned, but the contents of such letters must be set forth in order that it may appear on the face of the pleadings that they are of the character charged. ( People v. Danihy, 63 Hun, 579, 581, and authorities there cited.) The letter set out in the complaint merely alleges that some one has been writing and sending anonymous letters. The mere characterizing of such letters as obscene by the pleader is not an allegation of fact, but a conclusion from facts, none of which are shown to exist. Writing and sending anonymous letters is not a crime; such letters might be entirely innocent. It is only when they are in fact obscene that the writing and mailing of them becomes a crime, and the facts from which the conclusion is to be drawn should appear in the pleadings. For this reason we think the facts do not constitute a cause of action, and the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to amend complaint upon payment of said costs.
PATTERSON, P.J., LAUGHLIN, HOUGHTON and SCOTT, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.