Summary
In Bingham v. Gaynor (141 App. Div. 301) the court struck out a plea of justification which was set up as a defense to the whole publication, on the ground that the plea did not attempt to justify all the charges made against the plaintiff by the defendant.
Summary of this case from Sherman v. International Publications, Inc.Opinion
December 30, 1910.
E.C. Crowley, for the appellant.
Stephen C. Baldwin, for the respondent.
The first defense demurred to alleges, in substance, that the defendant before writing the letter addressed to the mayor, several times requested the plaintiff to have the picture and measurements of the Duffy boy removed from the Rogues' Gallery, which the plaintiff refused to do, notwithstanding a decision of the Supreme Court, in an action to which the plaintiff was a party, to the effect that such picture and measurements could not legally be retained; that the process of measuring and photographing persons arrested, but not convicted, had, under the direction of the plaintiff, been continued after that decision; that the plaintiff had advised a police lieutenant named Kuhne, who had been convicted of contempt of court, to resist the court orders and to refuse to apologize and thereby purge himself of contempt, and "believing that the plaintiff was a person without any conception of his duties and without respect or regard for the laws, the defendant wrote the letter complained of to the Mayor, the superior officer of the plaintiff; that the matters of fact stated" in the letter and the statement "are true and the opinions therein fair comment on the said acts of the plaintiff, and only such as to bring properly before the said Mayor the official misconduct of the plaintiff, and were and are without malice; and the said statement and the said letter were privileged."
The second defense demurred to alleges that the statements in the articles complained of are true; that in November, 1907, the police authorities under the command of the plaintiff, police commissioner, photographed and measured persons who had been arrested but not convicted of crime, and in the case of one Jenkins photographed and measured a man who was at large on bail; that the illegality of these proceedings was called to the attention of the plaintiff; that the plaintiff "advised one August Kuhne to defy the judgment of the Supreme Court convicting him of contempt of court for refusing to obey a writ of habeas corpus requiring him to produce the body of the said Frank Jenkins, the offense consisting of photographing said Jenkins subsequent to the service of said writ, the purpose of which had been to prevent such an illegal act;" paid Kuhne's fine therefor; granted him leave of absence from duty while he was serving a term of thirty days' imprisonment imposed by the court, and promised to promote him thereafter to the office of police captain; the facts concerning the numerous arrests of Duffy and defendant's letters relative thereto, as substantially set forth in defendant's letter to the mayor; that the plaintiff had received from the proper officials the full record of the arrests, charges and disposition of the charges made against Duffy, which showed no conviction of any crime; that notwithstanding, the plaintiff wrote to the defendant refusing, and openly refused, to remove the photograph and measurements and stated that the treatment of Duffy was justified; and that on or about February 6, 1906, an injunction was granted by the Supreme Court restraining plaintiff and his subordinates from entering certain specified premises and that with full knowledge of such injunction the plaintiff and his subordinates acting under his direction, violated and wholly disregarded the same and entered said premises, annoyed, harassed and oppressed the tenants.
Neither of the defenses is pleaded as a partial defense, nor does either specify which of the causes of action alleged it purports to answer. Upon demurrer, therefore, each must be treated as a complete defense to the entire complaint and its sufficiency determined when tested in that way. ( Thompson v. Halbert, 109 N.Y. 329; Lapetina v. Santangelo, 124 App. Div. 519; Price v. Derbyshire Coffee Co., 128 id. 472.) The defenses are not aided in any way by the allegation that the articles complained of are true, because no facts are stated in such allegation. It is a conclusion and nothing more. ( Wachter v. Quenzer, 29 N.Y. 552.) The first defense was evidently intended as a plea of qualified privilege, and the second as a justification. Many of the same questions arise in each case and the defense of justification may conveniently be considered first.
It is fundamental that a plea in justification must be as broad as the charge. ( Xavier v. Oliver, 80 App. Div. 292; Young v. Fox, 26 id. 261.) In determining what the charge is the scope and object of the whole article must be considered, and such a construction put upon the language used as would naturally be given to it. ( More v. Bennett, 48 N.Y. 472.) In the articles here complained of many abusive terms are used, but in the absence of innuendoes only such statements as I consider libelous per se and refer unequivocally to the plaintiff will be considered.
1. The first libelous charge is one of "scoundrelism." It is true the plaintiff is not mentioned by name in connection with the use of this term, but reference to him is so plain and unmistakable that "he who runs may read." I do not see how one can read the letter without being irresistibly led to the conclusion that the word "scoundrelism" is directed towards the plaintiff and no one else. What the writer had in mind and what he was complaining of is evident from the first sentence in the letter: "I had written a letter," he says, "to the Governor of the State to get redress for the scoundrelism hereinafter mentioned through the power of removal of city officials which he possesses, but on second thought I concluded to withhold it and first ask for such redress through you." What is the "scoundrelism hereinafter mentioned?" The refusal of the plaintiff as police commissioner to remove the photograph and record of the Duffy boy from the Rogues' Gallery. The plaintiff is the only one the writer is complaining of, and it is his removal that is referred to. The word scoundrel is libelous per se. (25 Cyc. 260, 261; Loveland v. Hosmer, 8 How. Pr. 215.) There is no attempt to justify this charge in the defense pleaded, and if the conclusion be correct that the charge unmistakably refers to the plaintiff, then the defense is insufficient.
2. There is no justification of the charge that "the Police Commissioner is doing all he can to make it impossible for him to lead an honest life and make an honest living, and to force him instead to a life of crime." This expressly refers to the plaintiff, is libelous per se, and proof of all the facts alleged in the defense would not justify a jury in finding that the charge was true. Indeed, the only charge against the plaintiff, so far as the Duffy boy is concerned, was his refusal to remove his photograph and measurements from the Rogues' Gallery and by reason thereof his arrests followed. I take it no one would seriously contend that proof of that fact would justify a finding that the plaintiff was doing all he could to make it impossible for Duffy to lead an honest life or make an honest living, but instead to lead a life of crime.
3. The charge that "incompetents, corruptionists, and sometimes buffoons who are put in rulership over" the men on the police force, and compel them against their wish to make false arrests, while it may refer to others, it unquestionably refers to and includes the plaintiff, and because it may refer to others is none the less a libel upon him. The charge is that arrests "are being made," — the present, — at which time the commissioner was at the head of the police department. How can it be said that this did not refer to him? He was the one, as already indicated, of whom the writer was complaining and whose removal from office was sought. If these epithets refer to and include him, as I think they do, then there is no attempt at justification, and this, I understand, the respondent concedes.
4. "It is an ordinary thing for the Police Commissioner to refuse to obey the decisions of the courts and compel the police force to disobey them." No attempt is made to justify the charge, certainly not in so far as it states that the police commissioner compels the police force to disobey the decisions of the courts. Nor do I think facts are stated which justify the charge that "the despotism and lawlessness of the Police Commissioner is shocking" or that "he is possessed of the most dangerous and destructive delusion that officials can entertain in a free government, namely, that he is under no legal restraint whatever, but may do as he wills, instead of only what the law permits, and that only in the manner it prescribes."
It is, however, urged by the respondent that if the defense is a complete justification of any of the libelous charges it is not demurrable. This is not a correct statement of the law, as I understand it. The justification must be as broad as the libel itself, that is, of all the libelous charges made. The authorities referred to ( Lanpher v. Clark, 149 N.Y. 472; Gressman v. Morning Journal Assn., 197 id. 474) and others, involved a question of proof and not pleading.
It seems to me, therefore, that the answer does not justify, at least so far as the charges above specified are concerned, and if that be true, then a complete defense is not set forth. The plaintiff's demurrer to the second defense pleaded should have been sustained.
The sufficiency of the first defense remains to be considered. The court at Special Term ( 68 Misc. Rep. 565) seems to have been of the opinion that the letter to the mayor was privileged as a confidential communication written by a citizen having an interest in the matter discussed to a superior officer having the power of removal. But whatever privilege might otherwise have attached to the communication was destroyed when the defendant gave the same out for publication before it was received by the mayor. It is suggested by respondent's counsel that the publication is denied. It is denied in another part of the answer but not in the defense under consideration. Moreover, there was, in any event, no such privilege attaching to the statement constituting the second cause of action. The real question presented by this defense is whether the articles were privileged as fair comments on the act of a public official. If the statements of facts were true and the criticism fair and honest, without malice, the defense of privilege would be good. ( Hamilton v. Eno, 81 N.Y. 116; Mattice v. Wilcox, 147 id. 624; Hoey v. N.Y. Times Co., 138 App. Div. 149.) But under the guise of privilege the character and motives of the official criticised may not be attacked. As was said in Hamilton v. Eno ( supra), "We are of the opinion that the official act of a public functionary may be freely criticised and entire freedom of expression used in argument, sarcasm and ridicule upon the act itself; and that then the occasion will excuse everything but actual malice and evil purpose in the critic. We are of the opinion that the occasion will not of itself excuse an aspersive attack upon the character and motives of the officer; and that to be excused the critic must show the truth of what he has uttered of that kind." Whether the bounds of fair criticism have been exceeded or not is a question of law for the court. ( Hoey v. N.Y. Times Co., supra.)
Instances have already been pointed out where the statements made were not fair comments on the acts of the plaintiff, but were defamatory of his character, i.e., (1) charging him with scoundrelism; (2) with being incompetent, corrupt and a buffoon; (3) being a despot and lawless; (4) possessed of the most dangerous and destructive delusion that an official can entertain in a free government.
My conclusion, therefore, is that neither of the defenses demurred to is a complete defense to the cause of action set out in the complaint.
It follows that the interlocutory judgment appealed from should be reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to serve an amended answer upon payment of costs in this court and in the court below.
INGRAHAM, P.J., and LAUGHLIN, J., concurred; MILLER and DOWLING, JJ., dissented.
I dissent. The complaint is that the alleged libelous articles were "maliciously made, composed and published concerning the plaintiff in his said office of Police Commissioner."
The first plea in defense states the occasion for writing said letters, i.e., the refusal of the plaintiff to take the photograph and measurements of the Duffy boy from the so-called "Rogues' Gallery;" the continued practice of the police to take photographs and make measurements of persons arrested, but not convicted, after Mr. Justice BURR had decided in a proceeding to which the plaintiff was a party that that practice was illegal, and the advice given by the plaintiff to one Kuhne, who had been convicted of contempt of court, to resist the court orders and to refuse to apologize and thereby purge himself of said contempt. The plea then avers that the matters of fact stated in the letter are true "and the opinions therein fair comment on the said acts of the plaintiff, and only such as to bring properly before the said Mayor the official misconduct of the plaintiff, and were and are without malice; and the said statement and the said letter were privileged."
Strictly speaking, the claim of qualified privilege only applies to the communication to the mayor, and the plea is in complete defense of all the publications. However, I think it is good as a complete defense. The subject of the articles, i.e., the official conduct of the plaintiff and of the police was a matter of public concern. The press and any citizen had the right, fairly and in good faith, to comment upon it.
If the statements of facts were true, the comments thereon fair and the defendant's motives honest, the publications were not libels, and the plea demurred to presents those issues. Entire freedom of discussion of the public conduct of public men is permitted in this State. Fair and honest criticism is not defamation. The only limitation is that the occasion must not be used to gratify malice or to assail private character. ( Cooper v. Stone, 24 Wend. 434; Fry v. Bennett, 5 Sandf. 54; Reade v. Sweetzer, note, 6 Abb. Pr. [N.S.] 9; Hamilton v. Eno, 81 N.Y. 116; Mattice v. Wilcox, 147 id. 624; Triggs v. Sun Printing Publishing Assn., 179 id. 144; Hoey v. N.Y. Times Co., 138 App. Div. 149.) Whether the deductions from a given state of facts are fairly drawn and honestly asserted must ordinarily be questions for the jury. ( Vide cases cited supra, and Fay v. Harrington, 176 Mass. 270.)
As I read the articles there is not a word in them unequivocally referring to the plaintiff which imputes bad motives or evil designs to him or in any way reflects upon his moral character, and the complaint itself negatives the claim that the plaintiff's private character has been aspersed. Under the plea in question the defendant will be permitted to give evidence of the truth of the specific statements of fact in the articles and the honesty of his purpose, and thereupon will be entitled to go to the jury on the question of the reasonableness and fairness of his inferences. The plea, therefore, cannot be bad. For a case sustaining almost precisely such a plea see Kane v. Mulvany (Ir. R. [2 C.L.S.] 402).
It is to be noted that the articles are pleaded as a whole without innuendo. Considered as a whole, they are an attack upon the practice of the police in measuring and photographing persons arrested but not convicted, and upon the plaintiff's official conduct in approving and continuing that practice in the face of a decision of a justice of the Supreme Court, and in refusing to take the photograph of the boy Duffy from the so-called "Rogues' Gallery." The plea in justification alleges that the statements, matters and things contained in said alleged libels are true, and supports that by specific averments of every fact therein stated and of many not stated, to wit: That in November, 1907, the police under the command of the plaintiff seized, photographed and measured one Frank Jenkins, who was at large on bail; that after Mr. Justice BURR had decided in a case in which the plaintiff was a party that the police have no authority to measure and photograph persons and put their pictures in the "Rogues' Gallery" unless on conviction of crime and sentence to prison, the police under the command of the plaintiff, with his knowledge, and in many cases under his personal advice and direction, "continued to photograph, and to strip, measure and index as felons many hundreds of persons who had not been convicted and sentenced to prison;" that the plaintiff counseled and advised the officers under him to disregard said decision, and advised one Kuhne to defy the judgment of the Supreme Court convicting him of contempt of court, and to refuse to apologize and agreed to, and did, pay his fine, gave him a leave of absence while he was serving a term in jail and promised to reward him by a promotion; that with full knowledge of the decisions of the courts on the subject and the records the plaintiff refused to remove the photograph and measurements of the Duffy boy and stated openly and publicly that the treatment of him, as set forth in the alleged libelous articles and in the plea, was justified; that with full knowledge of, and in violation of, an injunction, granted about February 6, 1906, the plaintiff and his subordinates, acting under his direction and control, without a warrant or other legal process, entered certain premises named and annoyed, harassed and oppressed the occupants thereof.
It cannot be doubted that every statement of fact in the alleged libels is met by the plea. The characterizations and the general observations remain to be considered. The ones pointed out by the learned counsel for the appellant may be divided into two classes: (a) those of doubtful application; (b) those unequivocally referring to the plaintiff.
(a) Those of doubtful application are the following: "Scoundrelism hereinafter mentioned;" "outrageous violations of our laws and system of free government;" "criminal official wrongdoing and oppression," and the paragraph beginning "Many thousands of false arrests are being made here annually." I think that all but the last refer to the treatment of the Duffy boy by the police, which is narrated. At any rate a jury would be justified in so finding. The plaintiff is charged with having refused to direct the removal of the boy's photograph, and with thereby allowing such treatment to continue. In effect the defendant said that he had applied to the plaintiff on behalf of the boy for relief from what is characterized as "scoundrelism," "outrageous violations of our laws and system of free government," "criminal official wrongdoing and oppression" on the part of the police," and that, having met with a refusal, he asked the mayor for relief, intimating that he might ultimately go to the Governor. The "many thousands of false arrests" are not specifically or even inferentially charged as having been caused by the plaintiff, and the epithets "incompetents, corruptionists, and sometimes buffoons" do not necessarily refer to him. Of course, if they do, there is no attempt at justification. But the plural is used; a class referred to, which may include any number of the plaintiff's predecessors, and any number of subordinate officers, who are or have been put in rulership over the men on the force, and may or may not include the plaintiff. Certainly we cannot say as matter of law whether the ordinary reader would understand that all or any particular one of those terms referred to the plaintiff. The expression, "Men on the police force," as commonly understood, does not include all the men in the department under the commissioner. An interesting nisi prius case, which happens to be at hand, may be cited for the proposition that the application of those words is for the jury. ( Seymour v. Butterworth, 3 F. F. 372.)
(b) The statement, "The Police Commissioner is doing all he can to make it impossible for him to lead an honest life and make an honest living, and to force him instead to a life of crime," is not to be construed apart from its context. It is merely the writer's conclusion as to the effect of the plaintiff's refusal to remove the boy's photograph, and of the continued police persecution in consequence. I do not now think of any course of conduct which would be more likely to ruin a lad of nineteen than that detailed in the letter and in the plea demurred to.
The reference to the plaintiff as the "offender" relates to the seizure in November, 1907, of persons at large under bail, and is specifically met by the plea. The only other references to the plaintiff requiring notice are the following: "But it is an ordinary thing for the Police Commissioner to refuse to obey the decisions of the courts and compel the police force to disobey them. Many instances can be cited." "He is possessed of the most dangerous and destructive delusion that officials can entertain in a free government, namely, that he is under no legal restraint whatever, but may do as he wills, instead of only what the law permits, and that only in the manner it prescribes." "The despotism and lawlessness of the Police Commissioner is shocking to every American who knows what free government means and what it cost in property and blood of our ancestors to acquire it." At least four specific instances are averred in justification of the first charge, last above quoted. Moreover, it was not necessary to specify every one of the "many hundreds" of cases in which men were photographed in disregard of Mr. Justice BURR'S decision. The paragraph next quoted does not import a charge of insanity, as is said, nor does it reflect upon the plaintiff's private character. It is the concluding observation of the writer upon the plaintiff's official acts, previously narrated. The words "despotism and lawlessness" in the last quotation do not import a charge of general lawlessness, but refer to the specific acts under discussion. The defendant defined what he meant by "despotism," and obviously the word "lawlessness" was used much in the same sense.
The plaintiff has limited his complaint to the publications as a whole, and, therefore, cannot require the defendant to plead to his construction of isolated words and phrases. The charge consists of statements of fact and of comments thereon. The plea fairly meets all of said statements and avers other facts in further justification of the comments. It will be for the jury to determine the meaning and application of the comments and to say whether they were justified. We cannot rule that the plea is not as broad as the charge, simply because we may think some of the defendant's animadversions too severe, though I am far from suggesting that the facts averred did not justify vigorous comment, or that they do not justify the charge, even upon the plaintiff's own construction, except as to the words "incompetents, corruptionists, and sometimes buffoons."
It follows that the pleas in defense are not open to attack by demurrer; indeed I think they were scientifically drawn to meet the complaint, and, therefore, vote to affirm the interlocutory judgment.
DOWLING, J., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.