Art. 9. Defenses.

A substantially accurate report of a divorce trial is privileged, but in case it interpolates comments of counsel which were not made as to the truthfulness of testimony, which contain matters libelous per se, that is evidence of malice which destroys the privilege in respect to the entire report. D'Auxy v. Star Co., 31 Misc. Rep. 388, 64 N. Y. Supp. 283.

In Gallagher v. Bryant, 44 App. Div. 527, 60 N. Y. Supp. 844, affirmed 162 N. Y. 662, on opinion below, it was held that an article claimed to be libelous, together with the head-note, was such as to authorize the overruling of a demurrer to the complaint.

In Sarasohn v. Workingmen's Publishing Assn., 44 App. Div, 302, 60 N. Y. Supp. 640, the same rule is held, and it is said that the libelous implication in an article in its entirety may not be so much in what was said as in the insinuations and inferences to be drawn from the report of it; that extraneous facts and covert innuendoes to be drawn from the publication may render it libelous, although proof of such facts may be admissible as bearing upon the good faith of the defendant, intending to disprove actual malice and in mitigation of damages.

In determining whether head lines prefixed to a published statement are libelous, they and the matter following them to which they refer must be construed together. Defamatory head lines prefixed to a report of a judicial decision or of judicial proceedings are no part of the report, but are, in effect, comments upon it and are not privileged unless they are a fair index of the matter contained in a truthful report. Lawyers' Co-operative Pub. Co. v. West Publishing Co., 32 App. Div. 585, 52 N. Y. Supp. 1120.

In an action for libel it is for the court to determine whether the alleged libel was a privileged communication; but the questions of good faith, belief in the truth of the statement, and the existence of actual malice remain for the jury.

The rule is the same where the alleged libelous charge is made against a public officer as such.

To accuse one of holding a public office of an offense is not privileged, and if the charge be false the utterer is liable, however good his motives; and this, although the libel relate to an act of the officer in the discharge of his official duties.

The official acts of the officer may be freely criticised, and the occasion will excuse everything but actual malice and evil purpose

Art. 9. Defenses.

in the critic; but the occasion will not of itself excuse an attack upon the character and motives of the officer; to excuse this the critic must show the truth of what he has uttered. Hamilton v.

Eno, 81 N. Y. 116.

One cannot attack in an aspersive manner the private or professional character of the plaintiff, certainly not unless there is some fair and plausible reason for so doing in the course of proper and appropriate criticism. If an individual choose to attack an officer and charge him with incompetency in his professional character and with criminality in an office (if the jury should so construe his language) he must be prepared, when brought into court, to prove the truth of his charge. Mattice v. Wilcox, 147 N. Y. 624 (637).

A criticism denouncing plaintiff's work as "one of the worst stories that had been printed since Sterne, Fielding, and Smollet defiled the literature of the already foul eighteenth century," that it is not only tainted with this one foul spot; it is replete with impurity; it reeks with allusions that the most prurient scandalmonger would hesitate to make," is not legitimate and of such a character as to protect a party against an action. Reade v. Sweetzer, 6 Abb. Pr. (N. S.) 9.

Several notable illustrations of the English rule regarding the right of criticism of literary publications, books, pictures, etc., will be found in Newell, 587, including the celebrated case of Whistler v. Ruskin.

The best known case in this State upon this point is Frye v. Bennett, reported 5 Sandf. 54, 4 Duer, 247, 3 Bosw. 201, 28 N. Y. 324, arising out of a criticism in the New York Herald upon the conduct of plaintiff as manager of an Italian opera.

When a paper published is a privileged communication plaintiff must show malice in its publication. The court may determine whether the subject-matter to which the alleged libel relates, the interest in it of the defendant, or his relations to it are such as to furnish an excuse, but the question of good faith, belief in the truth of the statement, and the existence of actual malice, remains although the court should hold that prima facie the communication was privileged, and this question is one for the jury. Klinck v. Colby, 46 N. Y. 429.

If a person discolors or garbles the account of the proceedings, and adds comments and insinuations of his own in order to asperse

Art. 9. Defenses.

the character of the party concerned it is libelous. Thomas v. Croswell, 7 Johns. 264.

Comments on report which are justified by the facts disclosed will not in a civil action make the article libelous, except upon proof of malice. Johns v. Press Publish. Co., 46 St. Rep. 859, 19 N. Y. Supp. 3.

SUBDIVISION 5.

Former Recovery.

Separate actions cannot be maintained for separate parts of a libelous publication, but recovery in one action exhausts the remedy, though not based on all the charges. Galligan v. Sun Printing & Pub. Assn., 25 Misc. Rep. 355, 54 N. Y. Supp. 471, 28 Civ. Proc. 349.

It is held in the same case that the republication on the same day of the same article, before the commencement of the action, does not afford ground for the second action, although it may be proven on the question of malice and extent of injury.

Since a plaintiff may recover in an action for malicious prosecution, not only for the unlawful arrest and imprisonment, but for the injury to his reputation, occasioned by false accusation, such a recovery is a bar to a subsequent action for slander for the accusation uttered for the purpose of having the arrest made, and on the occasion when it was made. Sheldon v. Carpenter, 4 N. Y. 579, cited and followed in Rockwell v. Brown, 36 N. Y. 207, where it is held that where the accusation in two cases is identical, the prosecution and judgment in the one will be a bar to the prosecution in the other, but if they relate to different utterances, although they allude to the same accusation, it is otherwise.

Both these authorities are cited with approval in Woods v. Pangburn, 75 N. Y. 495 (498, 499).

A previous recovery upon the same general charge is not a bar to an action unless the slander alleged was the same accusation. The utterance of the charge, after the prosecution of the charge had terminated, is an independent cause of action. Rockwell v. Brown, 36 N. Y. 207.

A judgment against a news agency for transmitting a libelous article to its customers for publication is not a bar to an action against the publisher of a particular newspaper for the publication of the article therein. Union Associated Press v. Heath, 49 App. Div. 247, 63 N. Y. Supp. 96.

When words are spoken of two or more persons, they cannot join in an action for the words, because the wrong done to one is no wrong to the other, with two exceptions, namely, defamatory words published of partners, in the way of their business, and slander of the title of joint owners of land. Newell, 360, citing Hinkle v. Davenport, 38 Iowa, 355; Robinett v. McDonald, 65 Cal. 611; Langhead v. Bartholomew, Wright (Ohio), 90; Gazynski v. Colburn, 11 Cush. 10; Bash v. Sumner, 20 Pa. St. 159.

It was said in Sumner v. Buel, 12 Johns. 474, that no writing is deemed a libel unless it reflects upon some particular person, and that a writing which inveighs against mankind in general, or against a particular order of men, is no libel. It must descend to particulars and individuals to make it a libel. Citing Hawkins' Pleas of the Crown, 3 Salk. 224, 1 Ld. Raym. 486.

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This case was followed in White v. Delevan, 17 Wend. 49, but in Rightman v. Delevan, 25 Wend. 203, is questioned, opinion Senator Verplanck, and Gedney v. Blake, 11 Johns. 54, is cited with approval, where the slander was your children are thieves and I can prove it," where it was held that the charge was sufficiently definite to designate plaintiff as one of the children intended.

These authorities are cited and followed in Maybee v. Fisk, 42 Barb. 326 (335).

In Palmer v. Bennett, 83 Hun, 220, 31 N. Y. Supp. 567, affirmed without opinion 152 N. Y. 621, it is held that it is not necessary in order to justify a recovery for a libel, that the plaintiff should have been named in the alleged libelous article, it is sufficient that the description or reference contained in such article identifies him. Citing Sumner v. Buel, supra; Townshend on Libel, § 131.

A publication charging that a certain house is a bawdy-house re

Art. 10. Parties.

fers to the character of the occupants, and is not merely a libel on the house, and one of its occupants may maintain an action for libel. McLean v. N. Y. Press Co., 46 St. Rep. 706, 19 N. Y. Supp. 262.

A corporation may sue for any libel upon it as distinct from a libel upon its individual members. It may be also sued for a slander upon it in the way of its business or trade. Odgers, 415.

A corporation may maintain an action for libel the same as individuals, for words affecting the business or property. Knickerbocker Life Ins. Co. v. Ecclesine, 11 Abb. Pr. (N. S.) 385, 42 How. Pr. 201, affirming 6 Abb. Pr. (N. S.) 9; Shoe & Leather Bank v. Thompson, 18 Abb. 413.

Where statements contained in an article, published by a newspaper, which described and censured the acts of a number of medical graduates, who were employed upon the house staff of a public hospital, in hanging an effigy of the medical superintendent of the hospital, although true in part, were erroneous and defamatory in some respects, one of the medical graduates referred to in such article may maintain an action for libel against the newspaper, since the legal effect of the publication is the same as if he had been the only physician referred to, and, where the answer mentioned him by name, as if reference had been made to him eo nomine. Bornmann v. Star Co., 174 N. Y. 212.

A corporation may sue for any libel upon it as distinct from a libel upon its individual members, and a corporation engaged in business may maintain an action for libel without proof of special damage, where the language used concerning it is defamatory in itself and injuriously and directly affects its credit, and necessarily and directly occasions pecuniary injury. Union Associated Press v. Heath, 49 App. Div. 247, 63 N. Y. Supp. 96, citing 13 Am. & Eng. Encyc. of Law (1st ed.), 448; Mutual Assn. v. Spectator Co., 50 N. Y. Super. 460.

In the principal case the judgment below was reversed, the court stating that the court below dismissed the complaint relying upon the Union Associated Press. Co. v. Press Pub. Co., 24 Misc. Rep. 610, 54 N. Y. Supp. 183.

Where an alleged libelous publication charged that there was a gang of blackmailers in an association, of which plaintiff was an officer, but contained nothing to charge that plaintiff was a member of the gang,-Held not libelous as to plaintiff. Hauptner v. White, 81 App. Div. 153, 80 N. Y. Supp. 895.