O'Shaughnessy v. Morning Journal Ass'n — 53 N.Y. St. Rep. 850

Majority

p. 850

James O’Shaughnessy, Pl’ff, v. The Morning Journal Association, Def’t.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Libel—Publication concerning detective.

A publication of and concerning a detective, to the effect that he joined in pursuit of an escaped prisoner, and upon his capture struck him with such force that he fell like a log and was handcuffed before he recovered; that the capture could have been made without such rough treatment, and that the spectators called him a big brute, if false and maliciously published, is libelous.

3. Same—Repetition of statements of others.

The repetition of injurious words as having been spoken by another is as much a libelous publication, if maliciously published, as if the direct charge had been made.

Exceptions ordered heard at general term in the first instance after dismissal of the complaint on the ground that it did not set forth facts sufficient to constitute a cause of action.

Action for libel.

p. 851

Chas. J. Patterson, for pl’ff; B. F. Einstein and Henry Yonge,. for def’t.

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 the 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

Dykman and Pratt, JJ., concur.