Edsall v. Brooks — 25 N.Y. Super. Ct. 29

Majority

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Isaac W. Edsall, plaintiff and appellant, vs. James Brooks and another, defendants and respondents.

Headnote

1. The removal of an individual from the place of policeman in the city of New York, by the Board of Commissioners of Police, solely upon the ground of his not having reported to such hoard the receipt by him of a gratuity for official service, will not justify the editors of a newspaper, in therein stigmatizing his conduct as “ blackmailing.” The heading of a report of proceedings on his trial for such offense with the title “ Blackmailing by a policeman,” and its introduction by prefatory remarks stating that the plaintiff was dismissed from office “ on charges of blackmail preferred against him by citizens in three distinct cases,” was therefore held libelous, although the report itself, as a just and fair account of what occurred, was protected.

2. It is not sufficient to protect a publication of a transaction from the charge of being a libel that it contains a correct narrative of what occurred, provided it contains unwarranted deductions from the facts that occurred, tending to defame the party complaining.

(Before Moncrief and Monell, JJ.)

Heard January 7, 1864;

decided February 13, 1864.

This action, was to recover damages for a libel upon the plaintiff, published in the New York Evening Express, of which the defendants are the editors and proprietors.

The alleged libel was in the following words :

“ Blackmailing by a policeman.—Isaac W. Edsall, of the 26th precinct) Oity Hall police, has been dismissed from the police department, by the commissioners, on charges of blackmail, preferred against him by citizens, in three distinct cases.”

The answer of the defendants, after admitting the publication of the alleged libel, sets out the entire article, of which the alleged libel forms a part only. The article alleges th at The first charge is by Cornelius W. Gibson, of Brighton, C. W. who alleges that on the 10th day of April, he was in this city, intending to go to British Columbia by the California steamer, and he was induced to go into a Peter Funk auction store, in Cortland street, and there purchased a watch, that was warranted gold, for $120. The watch turned out to be worthless, and after some very sharp practice by the Funks,

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the watch being resold, the victim bought an equally worthless one for $75; but he succeeded in getting $25 hack, for which he had to pay a commission of $6, thus losing $56. On the follow-* ing Monday, the 4th, he applied to the police, and Edsall was sent to work up the case. He brought up the parties before the mayor, and they were discharged on refunding the money. Gibson then gave Edsall $5 for his trouble.

Amos C. Yeoman, also a Canadian, made an affidavit that he was caught in the trap by the P. F.’s, and cheated out of $59, by the same process as his friend Gibson, and at the same place. That on applying to the police, Edsall was detailed to attend to the .case, and succeeded in recovering the money for him, and he, Yeoman, made him, a present of $é.

In answer to these charges, the officer stated on his trial that after he had recovered the money for the parties, they pressed him to take the money as a present, when he said that policemen were not allowed to take any gratuity, without' permission from the board of commissioners ; they still pressed him, and he took the money conditionally, intending to deposit it with the commissioners, preparatory to receiving their per-* mission. He was very busy all that day, and could not call .on the commissioners. He also stated that on the same afternoon Sergeant Cleary and officer Doyle, of the same precinct, called on Gibson and Yeoman, and induced, them to make the above statement before the chief clerk.

Commissioner Acton stated that on the 18th, two days after the complaint was made, and after Edsall had had notice of trial, the $9 was deposited by him with the commissioners.

There was another affidavit sworn to by John W. Allen, who had been cheated, on the 27th of March last, by the Peter Funks, out of $,5'0. Edsall recovered the money for him, and he paid him $5 for his trouble. On being shown this affidavit, Edsall became quite indignant, and said : ‘ I deny that in toto. I never had any thing to do with Mr. Allen’s case, to my recollection, and I deny taking any money from Mr. Allen. ' These were the only cases where I have had money tendered me, (referring to the eases of Yeoman and

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Gibson.) I admit I -received the money in these cases,, to appropriate it in accordance with the rules of the department.’

On the book of Captain Silvey, of the 26th precinct, appears the following entry, under date of March 27th : ‘ Officer Edsall recovered $48 from Ho. 1 Park Row, for John W. Allen, of Portland, Me. settled by the mayor.’ This seemed conclusive to the commissioners, and Edsall was immediately discharged from the department. Officer John Cronk, of the Broadway squad, has been selected by Mayor Opdyke in the place of Edsall, and has been transferred to the mayor’s office.”

The answer further alleged that charges were preferred against the plaintiff, before the said commissioners; a trial had' and that the plaintiff was, by the judgment or decision of the said police commissioners, dismissed from the said department ; and that the publication was, and is, in all respects, a just, fair, and impartial account, or statement of the charges, trial, and dismissal of the plaintiff from the police department, by a legally constituted public judicial tribunal; and that the printing and publishing thereof, was, in all respects, privileged, and that it was published with good motives, and for justifiable ends.

Upon the trial, the defendants gave in evidence a copy of the record of the proceedings before the police commissioners, upon the trial of the plaintiff, upon the charges preferred against him. The charges were the same as those stated in the Express article, and the plaintiff was removed from office. The plaintiff was charged with violation of the rules and regulations of the police department.

At the close of the evidence, the justice dismissed the complaint.

From the judgment the plaintiff appealed.

A. Sandford, for the appellant.

C. Lawton, for the respondents.

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By the Court,

Independently of the statute of 1854, (Laws of 1854, p. 314,) the publication of a judicial trial, fairly reported, and without express malice, is not actionable. The statute is not, therefore, in aid of the common law, but a mere legislative enactment of it. While the statute protects the editor' of a newspaper from an action, for a fair and true report of any judicial, legislative, or other public official proceeding, except upon proof of actual malice, it expressly withholds its protection for any libelous comments or remarks superadded to, or interspersed or connected with, such report. . Both at the common law, and under the statute, a privileged communication, or report of a public official proceeding, is libelous, if there be proof of actual malice ; otherwise, no action will lie. The only distinction, therefore, between a privileged report and one that is not privileged, is in the honest purpose, or evil design with which it is made and published. And the law will presume malice in all cases where the publication is not privileged.

The libel complained of in this action is contained. in the prefatory remark, or syllabus, which is prefixed to the report of the proceedings before the commissioners of police. It is, “ Blackmailing by a policeman; ” and states that the plaintiff has been dismissed from the police department by the commissioners, on charges of “ blackmail preferred against him by citizens, in three distinct cases.” If, then, these superadded remarks are in themselves libelous, and are not a just, fair, and true deduction from the proceedings had before the commissioners, (which the defendants undertook to> report and publish,) the defendants are deprived of the benefit of the statute, and are liable in this action.

The charges preferred against the plaintiff, and for which he was subjected- to a trial, resulting in' his removal from office, were, that he had improperly received money for his services, rendered in the performance of his duty. The proof to establish these charges was, that after being detailed to investigate complaints of frauds committed by mock auctioneers, and having succeeeded in recovering the amounts of which the parties

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had been defrauded, he accepted, as a voluntary gift, from the persons whose money he had recovered, in one case $4, and.in two other cases $5 each. The plaintiff stated on his trial, that he received the money conditionally, intending to deposit it with the commissioners, preparatory to receiving their' permission.

Although the members of the metropolitan police are inhibited from sharing, for their own benefit, in any present, fee, or gift, for police service ; yet .the board of police are authorized by statute, (Laws 1860, p. 456, § 65,) for meritorious and extraordinary services, rendered by a member of the police force, in the due discharge of his duty, to permit such member to retain, for his own benefit, any reward or present tendered him therefor. And it is made cause of removal for a member to receive a reward without giving notice thereof to the board.

The offense, therefore, is not in receiving the reward, but in omitting to give notice to the board; and the cause of the plaintiff’s removal from office, was in neglecting to notify the board that the gratuity had been received by him.

The guilt or innocence of the plaintiff, of the charges preferred, is not involved in the question now before us. It is" sufficient that he was, by a competent authority, adjudged to be guilty ; and the publication of the “ proceedings ” before the commissioners is protected.

I have no difficulty in determining that the comments of the defendants upon the charges. against the plaintiff, disconnected from the report of the trial, were libelous. Any publication, which is calculated to injure the character of a person, or to degrade him in the public estimation, is libelous. ( Weed v. Foster, 11 Barb. 203 .) To charge a public officer with “ blackmailing,” and to assert that he has been dismissed for that cause, was calculated to degrade and bring him into disrepute, resulting in injury to his character, with the public. “ Blackmail,” (from maille, French, signifying a small coin,) is defined to be a certain rent of money, coin, or other thing, paid to persons upon, or near the borders, being men of infiu

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ence, and allied with certain robbers and brigands, to be protected from, their devastation. (Wharton’s Law Lexicon, 101.) Substantially, we now attach the same meaning to the term. In common parlance, and in general acceptation, it is equivalent to, and synonymous with extortion—the exaction of money, either for the performance of a duty, the prevention of an injury, or the exercise of an influence. It supposes the service to be unlawful, and the payment involuntary. Not unfrequently it is extorted by threats) or by operating upon the fears or the credulity, or by promises to conceal, or offers to expose, the weaknesses, the follies, or the crimes of the victim, There is moral compulsion, which neither necessity nor fear, nor credulity can resist.

It cannot be doubted, I think, that the term “blackmail,” is universally regarded as an unlawful act; and though, from its indefiniteness and comprehensiveness, the offense is not clas-r sified as a distinct crime, nevertheless, it is believed to be criminal ; and to charge a man with “ blackmailing,” is equivalent to charging him with a crime.

The complaint against the plaintiff was not of a crime. He had not violated any law. He had not extorted money, by threat or promise. He had received a voluntary gift, and the penalty of his neglect to notify the board, was visited upon him, by his removal from office.

Under the facts of this case, I cannot persuade myself that the defendants made either a fair or a truthful deduction from the charges agaifist the plaintiff; nor of the cause which led to his removal from office. I do not impute to the defendants any evil design, or malignant intent, to defame the plaintiff. They may, and most probably did intend to do no more than to fairly characterize the offense charged ; but they were unfortunate in the use of words, carrying a different meaning ; and, however proper it may be to urge these considerations in mitigation of damages, the defendants must be held responsible for the injury which the law presumes the plaintiff has sustained.

In Thomas v. Croswell, ( 7 John. 264 ,) the alleged libel was

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contained in a newspaper account of a legislative appointment. The court, (Spencer, J.) say: “ There is no dictum to be met with in the books, that a man, under the pretense of publishing the proceedings of a court of justice, may discolor and garble the proceedings by his own comments and constructions, so as to effect the purpose of aspersing the character of those concerned.”

In Stanley v. Webb, in this court, ( 4 Sandf. 21 ,) the article complained of was headed : “ Extorting money to hush up the complaint,” and then followed a history of the proceedings before the magistrate. The court held the heading not to be privileged. So in Clement v. Lewis, (3 Brod. & Ring. 297,) the heading to an article, “ Shameful conduct of an Attorney,” was held not to be privileged. It was superadded to an account of proceedings in the insolvent debtors’ court.

Our conclusions are, that the comments of the defendants, superadded to their history of the trial before the police com^ missioners, are not privileged, are unfair, and untrue deductions from the facts disclosed on the trial, .and for the publication of which the defendants are liable in this action.

We are, therefore, of opinion that the judgment should be reversed, and a new trial granted.

Ordered accordingly.

Cases cited

Weed v. Foster 11 Barb. 203 N.Y. Sup. Ct. 1851-06-02 p. 33
Stanley v. Webb 4 Sandf. 21 N.Y. Super. Ct. 1850-05-25 p. 35