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Smith v. New Yorker Staats-Zeitung

138 N.Y.S. 557 Court N.Y. Sup. Ct. English

Delivered by NEWBURGER, J.

Contents

Majority

p. 557
(77 Misc. Rep. 601.)
SMITH v. NEW YORKER STAATS-ZEITUNG.
(Supreme Court, Special Term, New York County.
September, 1912.)

Headnote

Libel and Slander (§ 97*)—Actions—Complaint.
Where a complaint for libel, in charging that plaintiff was arrested for fraudulent use of the mail and held in bail for trial, admits the arrest and holding in bail, thereby showing that the publication was substantially a correct report of a judicial proceeding, and privileged, a demurrer will be sustained, though the plaintiff was subsequently discharged.
[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 234-236; Dec. Dig. § 97.*]
Action by George Herbert Smith against the New Yorker Staats-Zeitung. On demurrer to complaint for insufficiency. Sustained.
Putney, Twombly & Putney, of New York City (Edmonds Putney, of New York City, of counsel), for plaintiff.
Amend & Amend, of New York City (John E. Donnelly, of New York City, of counsel), for defendant.

The complaint herein shows that the article complained of charges the plaintiff with having been arrested by two post office inspectors for fraudulent use of the mail and held in bail for trial. The plaintiff admits that he was arrested and held for further hearing or trial. The mere fact that he was subsequently discharged is of no consequence in this proceeding, as such discharge occurred after the publication of the article complained of. From the admissions by plaintiff in his complaint, the article was a report of a judicial proceeding, and it appeared to be substantially correct. It was, therefore, privileged. It has been repeatedly held that where a complaint not only states facts sufficient to constitute a cause of action, but also alleges facts which would constitute a defense, the whole must be considered together in determining whether a proper cause of action has been stated. See, Calvo v. Davies, 73 N. Y. 211 , 29 Am. Rep. 130 ; Corr v. Sun Printing Co., 177 N. Y. 131 , 69 N. E. 288 . The demurrer herein is sustained. Settle order on notice.

Demurrer sustained.

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