Edsall v. Brooks

17 Abb. Pr. 221, 26 How. Pr. 426, 2 Rob. 29

• Court: The Superior Court of New York City
• Decided: March 15, 1864
• Status: Published

Opinion

By the Court.

*—Monell, J.

Independently of the statute of 1854 (Laws of 1854, 314, ch. 130), 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 libellous 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 libellous, 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 “black-mail preferred against him by citizens in three distinct cases.” If, then, these superadded remarks are in themselves libellous, and 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 benefits 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 succeeded in recovering the amounts of which the parties 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 eases $5 each. The plaintiff stated on his trial that he received the money conditionally, intending to deposit it with th«^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, 456, ch. 259, § 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 offence, 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 libellous. Any publication which is calculated to injure the character of a person, or to degrade him in the public estimation, is libellous. (Weed a. 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. “ Black-mail” (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 influence, and allied with certain robbers and brigands, to be protected from their devastation. (Whartons Law Lex., 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. Rot 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 “ black-mailing” is invariably regarded as an unlawful act; and though, from its indefiniteness and comprehensiveness, the offence is not classified as a distinct crime, nevertheless, it is believed to be criminal, and to charge a man with “ black-mailing,” 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 against the plaintiff, nor of the course 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 offence charged; but they were unfortunate in the use of words conveying 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 a. Croswell (7 Johns., 264), the alleged libel was 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 pretence of publishing the proceedings of a court of j ustice, 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 a. 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 a. Lewis (3 Brod. & Bing., 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 commissioners, 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.

Present, Moncrief and Monell, JJ.