O'Shaughnessy v. Morning Journal Ass'n — 78 N.Y. Sup. Ct. 47

Majority

p. 47

James O’Shaughnessy, Appellant, v. The Morning Journal Association, Respondent.

Headnote

Action for libel — repetition of injurious words us spoken by another-— lohat constitutes a libel.

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

In an action to recover damages for the publication of an alleged libel, the complaint sets forth an article published by the defendant to the effect that the plaintiff, a detective officer, joined in the pursuit of an escaped prisoner, and, upon the prisoner’s capture, 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 cause for such rough treatment, and that the capture could have been made without such a free use of the officer’s fists; which publication was charged to be false and to have been maliciously published and composed by the defendant of and concerning the plaintiff.

Upon the trial the plaintiff’s complaint was dismissed on the ground that the article was not libelous even if it was false and was published maliciously.

Held, error; that the facts alleged in the complaint, if false and published maliciously, constituted a libel.

p. 48

Appeal by tbe plaintiff, James O’Shauglmessy, from an order of tbe Supreme Court dismissing plaintiff’s complaint, made on tbe 7th day of March, 1893, jit tbe Kings County Circuit, and entered in tbe office of tbe clerk of tbe county of Kings.

Tbe action was brought to recover damages for an alleged libelous article published in defendant’s newspaper. Upon tbe trial, before tbe plaintiff had opened bis case, tbe defendant’s attorney moved to dismiss tbe complaint on the ground that it did not state facts sufficient to constitute a cause of action, which motion was granted.

Chas. J. Patterson, for tbe appellant.

B. P. Hmstewi and Henry Yonge, for tbe respondent.

Tbe complaint set forth an article published by the defendant of and concerning tbe plaintiff, which was sufficient to carry tbe case to tbe jury. Tbe charge in tbe article is to tbe effect that the plaintiff, a detective officer, joined in tbe pursuit of an escaped prisoner in Brooklyn. That tbe plaintiff, upon tbe capture of tbe prisoner, struck him with such force that be dropped like a log and was handcuffed before be recovered, and douched with cold water. That the -spectators cried shame and called tbe plaintiff a big brute. That there Avas no sufficient occasion for this rough treatment. That tbe captured prisoner was tossed bodily into a van. That tbe 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 tbe defendant of and concerning tbe plaintiff. For tbe purposes of this appeal tbe publication must be assumed because the complaint was dismissed because tbe 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 bold up tbe plaintiff to obloquy and contempt. They reflect upon tbe plaintiff’s business and bis management of it. The charge of being a brute in his business is in legal effect directly charged and published because tbe repetition of injurious words as having been spoken by another,

p. 49

is a libelous publication as mucli 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 the event.

DyKMAN, J., concurred; Pbatt, J., not sitting.

Exceptions sustained, and judgment reversed, and new trial granted, costs to abide event.