p. 609O’SHAUGHNESSY v. MORNING JOURNAL ASS’N.(Supreme Court, General Term, Second Department.Headnote
Libel—What Actionable.A newspaper article stating that plaintiff, a detective officer, joined in the pursuit of an escaped prisoner; that on the latter’s capture plaintiff struck him so that “lie dropped like a log;” that the prisoner was handcuffed, douched with cold water, and tossed bodily into a van; that the spectators cried “Shame!" and called plaintiff a “big brute,” and that the capture could have been made without such rough treatment and free use of plaintiff’s fists,—is libelous.
Exceptions from circuit court, Kings county.
Action by James O’Shaughnessy against the Morning Journal Association. The court granted defendant’s motion to dismiss, and ordered that plaintiff’s exceptions be heard in the first instance at general term.
Argued before. BARNARD, P. J., and DYKMAJST and PRATT, JJ.Charles J. Patterson, for appellant.
Townsend, Dyett & Einstein, (B. F. Einstein and Henry Yonge, of counsel,) for respondent.
The complaint set forth an article published by the defendant of and concerning the plaintiff, which was sufficient to carry the case to the jury. The charge in the article is to the effect that the plaintiff, a detective officer, joined in the pursuit of an escaped prisoner in Brooklyn; that the plaintiff, upon the capture of the prisoner, struck him with such force that he dropped like a log, and was handcuffed before he recovered, and douched with cold water; that the spectators cried “Shame!” and called the plaintiff a big brute; that there was no sufficient occasion for this rough treatment; that the captured prisoner was tossed bodily into a van; that the capture could have been made without such a free use of the officer’s fists. This is charged to be false, and to have been maliciously published and composed by
p. 610the defendant of and concerning the plaintiff. For the purposes of this appeal the publication must be assumed, because the complaint was dismissed because the article was not libelous even if it was false, and was published maliciously. If false, and if it was maliciously published, is it libelous? We entertain no doubt but that it was a libel. The words hold up the plaintiff to obloquy and contempt. They reflect upon the plaintiff’s business, and his management of it. The charge of being a brute in his business is, in legal effect, directly charged and published, because the repetition of injurious words as having been spoken by another is a libelous publication, as much so if maliciously published as if the direct charge had been made. The exceptions should be sustained, and a new trial granted, costs to abide event. All concur.