Waistel v. Holman — 2 N.Y. Super. Ct. 172

Majority

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John B. Waistel versus Joseph T. Holman.

Headnote

In every action for a libel, a publication oí the libellous matter must be distinctly averred: and it will not be sufficient to allege, that the defendant composed, wrote, and delivered to the plaintiff a certain false, malicious, and defamatory libel, but it must appear upon the face of the. declaration, that the libel was, in some form, made public.

It is not necessary, however, to aver, in direct terms, that the libel was communicated to third persons, but it will be sufficient to allege, that the defendant published, and caused to be published, a certain libel, although it also appears that it was addressed to the plaintiff.

Demurrer to the first and second counts of the plaintiff’s declaration. The action was for a libel contained in a letter written, addressed, and sent by the plaintiff to the defendant; and the question was, as to the sufficiency of the publication set forth in the declaration.

The first count averred, that the defendant, on the 28th day of September, in the year 1828, at the city and county of New-York, “ did cdmpose, write, and deliver, and cause to be compos-

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" ed, written, and delivered to the plaintiff a certain false, scanda- " lous, malicious, and defamatory libel of and concerning the “ plaintiff, and addressed and directed to him, containing the false, “ scandalous, malicious, defamatory, and libellous matter follow- “ ing,” &c., setting out the letter in Iubc verba.

The second count alleged, that the defendant “published, and “ caused and procured to be published, a certain other false, scan- “ dalous, malicious, and defamatory libel, addressed to the plain- tiff, and of and concerning the plaintiff containing certain other “ false, scandalous, malicious, defamatory, and libellous matter, “ of and concerning the plaintiff, as follows,” &c., setting out the letter as in the first count..

To these two counts the defendant demurred; hut took issue upon the other counts in the declaration, which were for slander.

Mr. J. Anthon, for the defendant, and in support of the demurrer, contended,

that as the first count set forth a letter in hœc verba, written and sent by the defendant to the plaintiff a publication of it to a third person should have been averred, in order to make it libellous. The gist of the action is injury done to the character of the plaintiff in the estimation of others, and this could never come but from publication. To write and deliver a letter to the person himself, who is libelled, is no publication, for he may keep it entirely secret. The defendant does not put the defamatory matter into circulation, and of course does not injure the plaintiff in the estimation of others. As there can be no libel without a publication of it to others, besides the plaintiff, the publication should be averred, and the want of such an averment is a fatal defect in the declaration. [Lyle v. Clason, 1 Caines’ R. 580.]

The second count is substantially like the first, and as it also sets out the subject matter in hmc verba, the Court will judicially understand, that the supposed libel is a letter addressed by the defendant to the plaintiff. The publication of this letter should then be distinctly averred, and it is not sufficient to state in general terms, that the defendant “published, and caused it to be pub- “ lishedThe reason is, that from the averments taken together, it appears the publication was made merely by sending the

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letter to the plaintiff. This is not a sufficient averment; it must appear that the libel was communicated to a third person; and the Court cannot infer, that it was so communicated. These defects are apparent, and may be taken advantage of by general demurrer.

Mr. O’Conner for the plaintiff, contra, contended,

that as the words set out were actionable in themselves, it was not material to aver a publication of them to a third person, by any technical words. If the words used in the libel are such as tend to injure, degrade, and disgrace the plaintiff, the libel is consummated when the letter containing it is delivered to the plaintiff himself. He is thereby in some measure constrained, in self-vindication, to communicate it to his friends, and the law will deem the libel published, if delivered to the plaintiff himself. [To show that the words used in the letter were actionable per se, and that the alleged publication was sufficiently averred, Mr. O’Conner cited Brooks v. Bemis, 8. John. R. 456. 10. Ib. 444. 5. Co. R. 125.]

The second count avers a publication in direct, unequivocal, and technical terms. It was not necessary to allege a publication to “ third persons,” nor can any such averment be found in the precedents. The libel is not called a letter, nor will the Court infer, that it was in fact a letter, because it was such in form. If it were termed a letter in the count, the inference might be that it was a sealed letter. But here this libel might have been exhibited to many persons before its delivery, and the plaintiff expects to prove, that the fact was so.

In Lyle v. Clason, (1 Caines’ R. 581,) the Supreme Court decided, that in every action for a libel, a publication of the libellous matter must be averred, that the sending of a sealed letter by the defendant to the plaintiff, is not a publication of the libel, and that any letter sent is to be presumed to have been sealed. The principle of that case is, that when the declaration shows a publication of the libel to the plaintiff only, the action cannot be sustained. The Court say, that the “ basis of the ac- “ tion is damages for the injury to the character, in the opinion of

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“ others,” and that can only arise from publications to third persons. In the present case, the declaration alleges that the defendant composed, wrote, and delivered to theplaintijf, a certain libel, fyc., addressed and directed to the plaintiff, fyc. This averment does not show a publication of the libel. The plaintiff could not have sustained any injury by it, unless he communicated its contents to others, and of course had no right to sustain this action for damages. The first count falls clearly within the case of Lyle v. Clason, and the demurrer to it is well taken.

The secoud count sets forth, that the defendant “ did publish and cause and procure to be published,” a certain other libel, “ addressed to the plaintiff.” Here is a sufficient publication averred. Although it may be inferred, that the libel was in the form of a letter, addressed by the defendant to the plaintiff, yet, the publication may have been, by showing it to other persons, or even by inserting it in a newspaper. The particular mode of publication need not be set forth. The demurrer to the second count must, therefore, be overruled.

Judgment for the defendant on the demurrer to the 1st count, and for the plaintiff on the demurrer to the 2d count, with liberty to either party to amend.

[C. O’Conner, Att'y for the plff.