Doyle v. Levy — 69 N.Y. St. Rep. 798

Majority

p. 798

Dennis Doyle, App’lt, v. Mitchel A. C. Levy, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 18, 1895.)

Headnote

1. Slander—Justification.

The defense of justification, in an action of slander for saying that plaintiff kept a house of prostitution, is established by proof that it was resorted to by prostitutes and disorderly persons.

2: Evidence—Slander.

Where the character of a house is in dispute, what anybody could have believed in respect to it is irrelevant.

3. Same—Compromise.

Evidence, tending to show an offer of compromise, is not admissible.

4. Same—Slander—Res inter alios acta.

«Where, in an action for slander, the character of plaintiff’s house is in dispute, evidence that a police captain, in the absence of the defendant, asked the plaintiff to permit him to inspect the premises, is inadmissible,

5. Same—Immaterial.

In such action, the character of the house in question cannot be established by proving the character of the adjacent house.

6. Same—Disorderly house.

One who harbors disorderly persons keeps a disorderly house.

7. Same—Prior slanders.

In such action, it is incompetent for plaintiff to prove the utterance of prior slanders, for which actions are not barred by the statute of limitations.

8. Slander—New trial—Surprise.

In such action, the plaintiff cannot claim to have been surprised by evidence on the part of the defendant which justified the alleged slanderous statement.

Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made

p. 799

on the minutes, and from an order denying a motion for a new trial on the ground of surprise and newly-discovered evidence.

Thomas F. Byrne, for app’lt; Franklin Pierce, for resp’t.

This action was begun March 18, 1892, to recover damages for an alleged slander. It is alleged in the complaint that November 1,1891, and March 3,1892,—two causes of action not separately stated,—the defendant, in the hearing of a number of persons, spoke concerning the plaintiff these words: “ That man Doyle is keeping a disreputable house at No. 34 West Fourth street. I mean that, it is a house of prostitution, and especially on the upper floor.” By his bill of particulars the plaintiff substituted for the first cause of action an alleged libelous letter of October 28, 1891, of the writing of which no evidence was given. The defendant, in his answer, set up three defenses: (1) He denied speaking the words. (2) That the plaintiff, at the dates mentioned, was keeping, at 34 West Fourth street, a house of prostitution,—a justification. (3) That he (defendant) was the owner of the premises, that plaintiff was in possession under a lease from a former owner, and that whatever he said in respect to the character of the house was to police officers and to the members of the board of excise, and was privileged. The plaintiff kept a liquor saloon at No. 34 West Fourth street, which his own witnesses testified was frequented by prostitutes, but they do not testify that the frequenters carried on their occupation in that building. Without stating the evidence, it fully justified the jury in finding a verdict of no cause of action, on the ground 'that plaintiff’s saloon was the resort of prostitutes and disorderly persons.

The exceptions at folios 58, 64, 67, and 141 are so clearly frivolous as not to require discussion. At folio 70 the court refused to permit the plaintiff to prove what the defendant said about the steps he was taking to break the lease. There was no dispute on the trial about the fact that the defendant was trying to get rid of the tenants in Nos. 34 and 36, occupying under leases from the former owner, because of the disreputable character of the places kept at those numbers, and the fact that one witness was not permitted to state precisely what defendant said about the steps he was taking was not error. At folio 77, the witness Harmon, called by the plaintiff, who had been employed by the defendant to obtain evidence as to the character of the business conducted at No. 34, testified that he was employed “ with regard to the excise of No. 34.” “Q. What did he say in regard to that?” This was objected to by the defendant, and excluded. What fact the plaintiff proposed to show, is not disclosed by the record. On the face of the record, it does not appear that the plaintiff proposed to prove any fact relevant to the issue. At folio 84 the witness Haggerty, called by the plaintiff, was asked: “Q. Was any part of that house so used that anybody could have any belief that it was kept as a disreputable house?” This was objected to, and the objection sustained. This question, on the face of it, is improper. What anybody could

p. 800

have believed in respect to it was entirely irrelevant. At folio 86, Matthews, a witness called by the plaintiff, testified that, three or four month before the plaintiff took possession of the premises, he occupied a portion of them for himself and family. An objection and an exception were taken to this evidence, and sustained. •Whether the objection was taken to the evidence which had been given, or to evidence which it was anticipated that he might give, does not appear, and the court did not err in sustaining the objection. At" folios 91 and 92 the plaintiff was asked whether the defendant offered to give him a new lease if he would discontinue this action, which was objected to and excluded. It is difficult to see how a proposition to give a new lease, based upon a settlement of the suit, was competent. The fact that the defendant offered to compromise the suit was not competent. At folios 94 and 95 the plaintiff was not permitted to testify that the police captain of the precinct, in the absence of the defendant, asked to examine the premises, to see whether they were disreputably kept or not. This was an occurrence between others when the defendant was not present, and was immaterial. At folio 105, Ryan, a witness called in behalf of the plaintiff, was asked: “ Q. In March, 1892, did Levy complain to you of Mo. 36, as being a house of prostitution?” This was objected to, and the objection sustained. The plaintiff did not occupy Mo. 36, and this action relates to his conduct in respect to Mo. 34. It was not error for the court to refuse to strike out, at folio 129, the word “solicited,” and-require the witness to state the precise words used by the female who accosted him. The words were not in issue, and it was entirely permissible for the witness to describe in general terms the conduct of the woman. Whether the neighborhood of the plaintiff’s place of business was frequented by lewd women was not material. If he harbored them, and kept aplace for their resort, he was as guilty of keeping a disorderly house as though his place of business had been in a part of the city not infested with them. At folio 149 the defendant was permitted to show that colored women went to and fro between the plaintiff’s place of business and a negro bath house, which, the witness testified, was reputed to be a disorderly place. The witness described the persons who passed between these places, and his statement that the bath house was represented to be a “fancy house” does not call for a reversal of the judgment. The rulings upon the admission and exclusion of evidence, above discussed, are typical of all those urged as erroneous in the brief of the appellant, and we are unable to see that any of them could by any possibility have pre-_ judiced the plaintiff’s case.

Prior to May, 1890, the plaintiff occupied Mo. 30 West Fourth street, and on the 24fh of that month he removed to Mo. 34, where he. kept a liquor saloon for three years. The plaintiff testified: “I first saw Mr. Levy (defendant) about May, 1890, at the excise board. He wrote a letter having my license—” At this point an objection was raised, which was sustained, and the plaintiff’s sentence was not completed. It is not alleged in the complaint that the defendant, in May, 1890, libeled or slandered

p. 801

the plaintiff; and it was incompetent for the plaintiff to prove the utterance of prior slanders, or the publication of prior libels, actions for which were not barred by the statute of limitations. Distin v. Rose, 69 N. Y. 122 . The plaintiff did not offer to show that the defendant wrote or said any particular thing to the excise boa.rd in May, 1890, or in May, 1891. If the letter was deemed to be competent, it should have been offered, so as to enable the court to determine whether it was admissible or not. If the plaintiff wished to show that the defendant entertained malice towards him, he should in some way have indicated that the testimony called for related to that subject. There was no foundation for the plaintiff's motion for a new trial on the ground of surprise, or newly-discovered evidence, The defendant justified in his answer the speaking of the words alleged in the complaint, and the plaintiff should have been prepared to meet this issue; and he was, for he gave evidence upon that issue. The fact that witnesses not ■called and sworn on this issue will testify that they knew the place, aud did not know that it was the resort of disorderly persons, is no. reason for granting a new trial. The plaintiff kept this place for three years, knew his customers and the persons who were accustomed to resort there, and should have been prepared to •meet the issue tendered by the answer.

After reading the evidence, we are satisfied—First, that it was not established that the defendant uttered the precise words -charged in the complaint; second, that, if he did, they were true; and, third, that whatever the defendant did or said was to rid the premises of disorderly tenants who were in occupation under a lease from a former owner. The verdict was right, on the merits, and the judgment and orders should be affirmed, with costs.

All concur.

Cases cited

Distin v. Rose 69 N. Y. 122 N.Y. 1877-03-20 p. 801