Bresslin v. Sun Printing & Publishing Ass'n

Jenks, P. J.: The publication of a fair and true report of proceedings before the magistrate is privileged. (Bissell v. Press Publish [94] ing Co., 62 Hun, 652.) The publication may consist of an abridged.or of a condensed statement. (Salisbury v. Union & Advertiser Co., 45 Hun, 120.) In determination whether headlines are proper and fair, they and the article itself must be read together. (Lawyers’ Co-Operative Pub. Co. v. West Pub. Co., 32 App. Div. 585, 590.) There is no proof of malice. The sergeant of police who made the arrest testifies that, when he was called into the shop, the jeweler said that the plaintiff had “ ‘ put his finger up to his mouth [illustrating] and the ring is gone.’ I says: ‘Did he swallow it?’ He says: ‘He must have swallowed it.’ At least, I believe that is just what I recollect now. I believe he swallowed it.” But these incidents were not incorporated in the said affidavit, and, therefore, we are not to consider them so far as the question of a privileged publication is concerned. The affidavit did not purport to specify the means of the alleged larceny. When the publication that a man has been arrested, charged with grand larceny, is privileged in view of an affidavit submitted to a magistrate, I fail to perceive how a publication of the method of the crime, although the method is not specifically stated in the affidavit before the magistrate, if the method does not in itself imply greater turpitude than does the charge of the commission of the crime, affords ground for a libel suit to recover compensation for injury to reputation. The "means as narrated in. this publication may have subjected the plaintiff to contempt, to ridicule or to scorn, but to be actionable, the words must have affected his reputation. Writing for the court, I have discussed heretofore this proposition in Cohen v. New York Times Co. (153 App. Div. 242). I advise that the judgment and the order be reversed, with costs,- and that the complaint be dismissed, with costs. Thomas, Mills and Putnam, JJ., concurred; Carr, J., not voting. Judgment and order. reversed, with costs, and complaint dismissed, with costs.