Culver v. Van Anden

Birdseye, J. —I can see no good reason for requiring the plaintiff to set forth in his complaint the bills, or the purport of the bills, pending before the Legislature, and referred to at the commencement of the alleged libellous matter set forth in the second cause of action. The libellous matter in that count, or cause of action, is that which follows the word “ prostitutes and it depends upon that word, and not upon the previous word “ designs.” It seems to me the reading of the sentence should clearly be, that the plaintiff prostitutes the City Court to be the tool, &c., not that he designs it to be the tool, &e. It does not seem to me to be the natural or proper construction of the charge [379] made against the plaintiff, that the readers of the defendant’s paper will see in the acts or bills pending before the Legislature, that it is the design of the plaintiff that the City Court shall be the tool of tricksters, &c. But rather: that in those acts, the readers will see the designs of the individual there referred to. What those designs are, or to what they relate, the charge does not disclose. But it proceeds to point out the individual who is alluded to; and he is averred to be the individual who now prostitutes the City Court, to be the tool of political tricksters, and (who being understood) makes it a gag and handcuff, &c. It is for this description of him that the action is brought, and in the description the libel is to be found. Whatever designs on his part were to be seen from the acts alluded to, they are not averred by the pleader, and do not seem from the terms quoted from defendant’s paper to relate to the City Court, or to his conduct therein. It is not certain that the first part of this sentence might not have been omitted entirely. Doubtless the general rule is, that in declaring for a libel, the whole assertion charged as libellous should be given ; and that sentence should not be divided. But when, as would seem to be the case here, the libel is in the mere descriptio personae, and not in the main averment of the sentence, I do not see why the allegation of the pleader may not be made to correspond to the fact. The general rule is clear that it is not necessary, in a case of libel, to set out the whole of the obnoxious publication. Starkie says it is sufficient to extract the obnoxious passages, provided their sense be clear and distinct (1 Starkie on Slander, 380); and it is "added, on the authority of Chief-justice Abbott, in Buckingham v. Murray (2 Carr, & P., 46), that it is not necessary to set out another part of the publication to which the libellous passage refers, provided the part which is set out be in itself distinct and intelligible. It may be added, that the motion as to the second cause of action seems also to be unnecessary. The sentence itself shows that the acts which it is asked that the plaintiff be compelled to set out in his complaint, had been previously referred to by the defendant in the article from which this sentence is an extract. They are spoken of, as “ those acts,” meaning, evidently, acts previously described. If so, they will be known with sufficient certainty upon the trial. For the general rule is, as was [380] said by the same learned judge in Cooke v. Hughes (Ryan & Moody, 112), that the defendant has a right to have the whole of the publication read from which the passages charged as libellous are extracts. The reason is obvious. He is entitled to show by the whole context that the words alleged to be libellous were not, in fact, used in an actionable sense. And this rule has been carried so far that where a letter of the defendant’s was read, which referred to an account of the transaction related in a newspaper, that newspaper was held to be evidence (Weaver v. Lloyd, 1 Carr. & P., 295). The second branch of the motion relates to the third cause of action set forth in the complaint. There can be no doubt that this count would have been defective according to the law as it stood before the Code, and as it was laid down in the case of Miller v. Maxwell (16 Wend., 9). In that case it was held, as it had been often held before, that where a publication, in its nature libellous, does not on its face point to any particular individual as the person libelled, the person bringing suit on account of such publication, to maintain his action, must allege, by way of inducement, such extrinsic facts and circumstances as that when read in connection with the libellous publication, and the inuendoes connecting the publication with the introductory matter, the conclusion will be inevitable in the mind of the reader that the plaintiff is intended to be slandered. The charge counted on in .this third cause of action is precisely of this character. It does not refer to the plaintiff by name. •It does not point to any particular individflal. At common law, averments must have been added to show the application of the charge to the plaintiff; but by section 164 of the Code this rule is changed, and for the very purpose of dispensing with these averments. It is now not necessary, in an action for libel or slander, to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff is bound to establish, on the trial, that it was so published or spoken. In Pike v.Van Wormer (5 How. Pr. R., 174), it was said that this section was enacted in order [381] to obviate the difficulty occasioned by the rule as stated in Miller v. Maxwell. From the principles laid down in that case by Judge Willard, and also by Judge Harris in the same case, on a subsequent occasion (6 Ib., 100,101), and also by Judge Duer and his associates, in Fry v. Bennett (5 Sandf. S. C. R., 66, 67), which need not be repeated here, the second branch of the defendant’s motion is unwarranted. The Code now says it shall be sufficient to state generally that the defamatory matter was published concerning the plaintiff, and without averring extrinsic facts to show its application to him. If that allegation is denied, it must be proved on-the trial. The court has no power to change the rule contained in the statute; or to say that the plaintiff must set forth matters which- show the application of the libellous words to the City Court of Brooklyn. To show that would only furnish ground .for concluding that the words were applicable to the plaintiff, who was the judge of that court. That indirect process is now wholly done away with. It is now sufficient to say the charge was made concerning the plaintiff. So far as the second branch of the motion demands an explanation of the meaning of the words charged as libellous, it stands upon a different footing. The rule on that subject is not affected by section 164 of the Code. Wherever it was necessary before the Code to aver extrinsic facts to show the meaning of the alleged defamatory matter, it is necessary still (see cases cited above). But such averments were never necessary when the words were actionable .in themselves; that is, when they conveyed a clear and direct imputation of a slanderous character. It was only when the words were ambiguous, that they were to be aided by averring extrinsic facts. If the application of the words charged in the third count to the plaintiff be, as it must be, taken as sufficient, I think a perusal of the count will show that there is no ambiguity in the words used, and no want of certainty in respect to the imputation intended to be conveyed. The motion must be denied, with $10 costs.