d'Auxy v. Star Co.

31 Misc. 388, 64 N.Y.S. 283

• Court: New York Supreme Court
• Decided: May 15, 1900
• Status: Published

Opinion

Gaynoe, J.:

The entire article purports to be a condensed statement of the contents of the affidavits read on a motion by the plaintiff for alimony and counsel fee in an action by her against her husband in the Supreme Court for a divorce. Only the particular affidavits from which the alleged libelous matter was taken were put in evidence. If it be a substantially accurate report it is privileged, though the matter be untrue (Salisbury v. Union & Adv. Co. 45 Hun, 120). Section 1907 of our Oode of Civil Procedure provides that an action cannot be maintained against a reporter, editor, publisher or proprietor of a newspaper for the publication therein of a “ fair and true report ” of aüy judicial proceeding “ without proving actual malice in making the report.” Where the matter published is a fair and true report, the publication itself of course furnishes no proof of malice, and the case cannot go to the jury without evidence de hors that the report was made from malice. Whether the report be a fair and true one is obviously a question for the court in the first instance. If it be true it is fair. If it be untrue, it is not covered by the privilege at all; and if the question of its fairness be capable of different conclusions, then the question of privilege is for the jury, and depends on whether they find the report fair or unfair. There was no evidence de hors of malice in this case, and the court finding by comparison that the matter complained of was a substantially true summary of the affidavits submitted on the motion for alimony and counsel fee, and put in evidence herein, dismissed the complaint. Ho mention was made on the argument of the motion to dismiss, of the reported comment of counsel in the article in respect of the statements in the affidavits of servants, including the charge of poisoning against the plaintiff by her brother-in-law, stated in one of the said affidavits, viz.: “ ‘ How absurd these servants’ statements are ’ exclaimed the counsel for Madame la Duchesse.” “ How marked by the stamp of verisimilitude,’ said the counsel of M. le Due, sententiously.” This means how likely or probable, or like the truth, they are. It is an assertion in support of the truth of such statements. There was evidence that no comments were made by counsel in court. If that be true the report is in this respect not true, and the comment is that of the defendant, and libelous per se. It is a holding of the statements up as probably true by the defendant. Such comment being therefore not covered by the defendant’s privilege, is not only a ground in itself for the action, but is also evidence on the head of that malice in the making of the entire report which would destroy the privilege in respect of the° entire report.

The motion for a new trial is granted. •