Opinion
December 19, 1949.
Action based upon a newspaper article published by defendants which stated that a certain assistant district attorney in charge of an investigation before a Grand Jury in Queens County had reported that certain persons, spoken of as "10 Queens bookies", but identified only by their alleged nicknames, had testified before the Grand Jury. Plaintiff, identifying himself with one of those stated nicknames, and asserting that he had appeared before the Grand Jury on the stated day, brought this action in libel to recover damages claiming that the article was false and defamatory of him. Defendants admit the publication of the article, but deny that it was written or published of or concerning the plaintiff. Appeal from an order dismissing, under subdivision 6 of rule 109 of the Rules of Civil Practice, two separate defenses alleging that the article was a fair and true report of a judicial, public and official proceeding with only fair comment thereon and, therefore, privileged, and that the article was true as to the person of whom it was written and published. Order reversed on the law, with $10 costs and disbursements, and motion denied, with $10 costs. In our opinion the defense that the article was a fair and true report of a judicial, public and official proceeding, privileged under section 337 of the Civil Practice Act, is a defense available to defendants which should not be summarily struck out as insufficient in law. ( Baumann v. Newspaper Enterprises, 270 App. Div. 825; Farrell v. New York Evening Post, 167 Misc. 412. ) Whether the other matter contained in the article was fair comment is a question for the jury under the facts here presented. ( Briarcliff Lodge Hotel v. Citizen-Sentinal Publishers, 260 N.Y. 106, 116; Hoeppner v. Dunkirk Print Co., 254 N.Y. 95, 105; Goodrich v. Woolcott, 3 Cow. 231, 240.) Where, in libel, there is presented the question of identity of the person of whom the article is written and published, that question is one for determination by a jury. ( Stokes v. Morning Journal Assn., 66 App. Div. 569, 570, and authorities there cited; Fleckenstein v. Friedman, 266 N.Y. 19, 23; Kehoe v. New York Tribune, 139 Misc. 420, 422, affd. 235 App. Div. 612.) Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur. [ 194 Misc. 750.]