Andrews, J.
On November 17, 1917, in the city of New York, the plaintiff sold to an agent of the defendant, one Sumner, an English translation of “ Mademoiselle de Maupin.” Mr. Sumner submitted the book to City
Magistrate House who, however, took no action. He then on November 22d presented a marked copy to Magistrate Simms with a letter calling attention to certain pages which he thought deserved examination. On the 28th he also presented a verified complaint to this magistrate charging that the book was obscene and indecent, referring not only to the marked pages but to the entire work. Thereupon an order was issued stating that it appeared “ from the within depositions and statements that the crime therein mentioned has been committed ” and holding the plaintiff to answer. The plaintiff was arrested at the direction of Sumner and arraigned. He waived ‘examination, was held for the action of the Court of Special Sessions, tried and acquitted. The record of that trial is not before us, but it was conceded that the copy of “ Mademoiselle de Maupin ” had been sold by the plaintiff and the acquittal was for the reason, apparently, that the book was not obscene or indecent. This action to recover damages for malicious prosecution was then begun. At the close of the evidence the case was submitted to the jury which found a verdict for the plaintiff. The Appellate Division has affirmed the judgment entered thereon.
The entire book was offered in evidence. We are asked to say from its bare perusal that probable cause existed for the belief on the part of Sumner that the plaintiff was guilty by its sale of a violation of section 1141 of the Penal Law.
In an action for malicious prosecution one of the elements of the plaintiff’s case is lack of probable cause. Whether or not this fact has been established may be for the jury to determine. Or it may become a question of law for the court. It is for the jury either when the circumstances upon which the answer depends are disputed or where conflicting inferences may fairly be drawn from them.
(Burns
v.
Wilkinson,
228 N. Y. 113;
Golley
v.
Brennan,
216 N. Y. 118.)
Theophile Gautier is conceded to be among the greatest
French writers of the nineteenth century. When some of his earlier works were submitted to Sainte-Beuve, that distinguished critic was astonished by the variety and richness of his expression. Henry James refers to him as a man of genius (North American Review, April, 1873). Arthur Symons (Studies in Prose and Verse), George Saints-bury (A Short History of French Literature), James Breck Perkins (Atlantic Monthly, March, 1887) all speak of him with admiration. They tell of his command of style, his poetical imagery, his artistic conceptions, his indescribable charm, his high and probably permanent place in French literature. They say that in many respects he resembles Thackeray.
This was the man who in 1836 published “ Mademoiselle de Maupin.” It is a book of over four hundred pages. The moment it was issued it excited the criticism of many, but not all of the great Frenchmen of the day. It has since become a part of French literature. No review of French writers of the last one hundred years fails to comment upon it. With the author’s felicitous style, it contains passages of purity and beauty. It seems to be largely a protest against what the author, we believe mistakenly, regards as the prudery of newspaper criticism. It contains many paragraphs, however, which taken by themselves are undoubtedly vulgar and indecent.
No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio or even from the Bible. The book, however, must be considered broadly as a whole. So considered, critical opinion is divided. Some critics, while admitting that the novel has been much admired, call it both
“
pornographic and dull.” (The Nation, Nov. 2, 1893.) Mr. Perkins writes that
“
there is much in Mademoiselle de Maupin that is unpleasant, and is saved only by beauty of expression from being, vul
gar. Though Gautier’s style reached in this novel its full perfection, it is far from his best work and it is unfortunate that it is probably the one best known.” An article in the June, 1868, issue of the Atlantic Monthly says that this is Gautier’s representative romance. James calls it his one disagreeable performance but “ in certain lights the book is almost ludicrously innocent, and we are at a loss what to think of those critics who either hailed or denounced it as a serious profession of faith.” Finally in “ A Century of French Fiction,” Benjamin W. Wells, professor of modern languages in the University of the South, says: “ Mademoiselle de Maupin is an exquisite work of art, but it spurns the conventions of received morality with a contempt that was to close the Academy to Gautier forever. With a springboard of fact in the seventeenth century to start from, he conceives a wealthy and energetic girl of twenty, freed from domestic restraints and resolved to acquire, by mingling as man among men, more knowledge of the other sex than the conventions of social intercourse would admit. He transfers the adventures from the real world to a sort of forest of Arden, where the Rosalind of Shakspere might meet a Watteau shepherdess and a melancholy Jacques. Thus he helps us over the instinctive repulsion that we feel for the situation, and gives a purely artistic interest to the self-revelation that-comes to his heroine and to Albert from their prolonged association. Various forms of love reaching out for an unattainable ideal occupy the body of the book, and when once the actors learn to know themselves and each other Gautier parts them forever. In its ethics the book is opposed to the professed morality of nearly all, and doubtless to the real morality of most, but as Sainte-Beuve said of it: ' Every physician of the soul, every moralist, should have it on some back shelf of his library,’ and those who, like Mithridates, no longer react to such poisons will find in Mile, de Maupin much food for the purest literary enjoyment.”
Wp have quoted estimates of the book as showing the manner in which it affects different minds. The conflict among the members of this court itself points a finger at the dangers of a censorship entrusted to men of one profession, of like education and similar surroundings. Far better than we, is a jury drawn from those of varied experiences, engaged in various occupations, in close touch with the currents of public feeling, fitted to say whether the defendant had reasonable ground to believe that a book such as this was obscene or indecent. Here is the work of a great author, written in admirable style, which has become a part of classical literature. We may- take judicial notice that it has been widely sold, separately and as a part of every collection of the works of Gautier. . It has excited admiration as well as opposition. We know that a book merely obscene soon dies. Many a Roman poet wrote a Metamorphoses. Ovid survives. So this book also has lived for a hundred years. -
On the other hand, it does contain indecent paragraphs.
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Andrews, J.
On November 17, 1917, in the city of New York, the plaintiff sold to an agent of the defendant, one Sumner, an English translation of “ Mademoiselle de Maupin.” Mr. Sumner submitted the book to City
Magistrate House who, however, took no action. He then on November 22d presented a marked copy to Magistrate Simms with a letter calling attention to certain pages which he thought deserved examination. On the 28th he also presented a verified complaint to this magistrate charging that the book was obscene and indecent, referring not only to the marked pages but to the entire work. Thereupon an order was issued stating that it appeared “ from the within depositions and statements that the crime therein mentioned has been committed ” and holding the plaintiff to answer. The plaintiff was arrested at the direction of Sumner and arraigned. He waived ‘examination, was held for the action of the Court of Special Sessions, tried and acquitted. The record of that trial is not before us, but it was conceded that the copy of “ Mademoiselle de Maupin ” had been sold by the plaintiff and the acquittal was for the reason, apparently, that the book was not obscene or indecent. This action to recover damages for malicious prosecution was then begun. At the close of the evidence the case was submitted to the jury which found a verdict for the plaintiff. The Appellate Division has affirmed the judgment entered thereon.
The entire book was offered in evidence. We are asked to say from its bare perusal that probable cause existed for the belief on the part of Sumner that the plaintiff was guilty by its sale of a violation of section 1141 of the Penal Law.
In an action for malicious prosecution one of the elements of the plaintiff’s case is lack of probable cause. Whether or not this fact has been established may be for the jury to determine. Or it may become a question of law for the court. It is for the jury either when the circumstances upon which the answer depends are disputed or where conflicting inferences may fairly be drawn from them.
(Burns
v.
Wilkinson,
228 N. Y. 113;
Golley
v.
Brennan,
216 N. Y. 118.)
Theophile Gautier is conceded to be among the greatest
French writers of the nineteenth century. When some of his earlier works were submitted to Sainte-Beuve, that distinguished critic was astonished by the variety and richness of his expression. Henry James refers to him as a man of genius (North American Review, April, 1873). Arthur Symons (Studies in Prose and Verse), George Saints-bury (A Short History of French Literature), James Breck Perkins (Atlantic Monthly, March, 1887) all speak of him with admiration. They tell of his command of style, his poetical imagery, his artistic conceptions, his indescribable charm, his high and probably permanent place in French literature. They say that in many respects he resembles Thackeray.
This was the man who in 1836 published “ Mademoiselle de Maupin.” It is a book of over four hundred pages. The moment it was issued it excited the criticism of many, but not all of the great Frenchmen of the day. It has since become a part of French literature. No review of French writers of the last one hundred years fails to comment upon it. With the author’s felicitous style, it contains passages of purity and beauty. It seems to be largely a protest against what the author, we believe mistakenly, regards as the prudery of newspaper criticism. It contains many paragraphs, however, which taken by themselves are undoubtedly vulgar and indecent.
No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio or even from the Bible. The book, however, must be considered broadly as a whole. So considered, critical opinion is divided. Some critics, while admitting that the novel has been much admired, call it both
“
pornographic and dull.” (The Nation, Nov. 2, 1893.) Mr. Perkins writes that
“
there is much in Mademoiselle de Maupin that is unpleasant, and is saved only by beauty of expression from being, vul
gar. Though Gautier’s style reached in this novel its full perfection, it is far from his best work and it is unfortunate that it is probably the one best known.” An article in the June, 1868, issue of the Atlantic Monthly says that this is Gautier’s representative romance. James calls it his one disagreeable performance but “ in certain lights the book is almost ludicrously innocent, and we are at a loss what to think of those critics who either hailed or denounced it as a serious profession of faith.” Finally in “ A Century of French Fiction,” Benjamin W. Wells, professor of modern languages in the University of the South, says: “ Mademoiselle de Maupin is an exquisite work of art, but it spurns the conventions of received morality with a contempt that was to close the Academy to Gautier forever. With a springboard of fact in the seventeenth century to start from, he conceives a wealthy and energetic girl of twenty, freed from domestic restraints and resolved to acquire, by mingling as man among men, more knowledge of the other sex than the conventions of social intercourse would admit. He transfers the adventures from the real world to a sort of forest of Arden, where the Rosalind of Shakspere might meet a Watteau shepherdess and a melancholy Jacques. Thus he helps us over the instinctive repulsion that we feel for the situation, and gives a purely artistic interest to the self-revelation that-comes to his heroine and to Albert from their prolonged association. Various forms of love reaching out for an unattainable ideal occupy the body of the book, and when once the actors learn to know themselves and each other Gautier parts them forever. In its ethics the book is opposed to the professed morality of nearly all, and doubtless to the real morality of most, but as Sainte-Beuve said of it: ' Every physician of the soul, every moralist, should have it on some back shelf of his library,’ and those who, like Mithridates, no longer react to such poisons will find in Mile, de Maupin much food for the purest literary enjoyment.”
Wp have quoted estimates of the book as showing the manner in which it affects different minds. The conflict among the members of this court itself points a finger at the dangers of a censorship entrusted to men of one profession, of like education and similar surroundings. Far better than we, is a jury drawn from those of varied experiences, engaged in various occupations, in close touch with the currents of public feeling, fitted to say whether the defendant had reasonable ground to believe that a book such as this was obscene or indecent. Here is the work of a great author, written in admirable style, which has become a part of classical literature. We may- take judicial notice that it has been widely sold, separately and as a part of every collection of the works of Gautier. . It has excited admiration as well as opposition. We know that a book merely obscene soon dies. Many a Roman poet wrote a Metamorphoses. Ovid survives. So this book also has lived for a hundred years. -
On the other hand, it does contain indecent paragraphs. We are dealing too with a translation where the charm of style may be attenuated. It is possible that the morality of New York city to-day may be on a higher plane than that of Paris in 1836 — that there is less vice, less crime. We hope so. We admit freely that a book may be thoroughly indecent, no matter how great the author or how fascinating the style. It is also true that well-known writers have committed crimes, yet it is difficult to trace the connection between this fact and the question we are called upon to decide. Doctor Dodd was hanged for forgery, yet his sermons were not indecent. Oscar Wilde was convicted of personal wrongdoing and confined in Reading gaol. It does not follow that all his plays are obscene. It is also true that the work before us bears the name of no publisher. That the house which issued it was ashamed of its act is an inference not perhaps justified by any evidence before us.
Regarding all these circumstances, so far as they, are at all material,- we believe it is for the jury, not for us, to draw the conclusion that must be drawn. Was the book as a whole of a character to justify the reasonable belief that its sale was a violation of the Penal Law? The jury has said that it was not. We cannot say as a matter of law that they might not reach this decision. We hold that the question of probable cause was properly submitted to them.
We have examined various other questions called to. our attention. The jury was told that malice was to be presumed if there was no probable cause for the prosecution. This is not an accurate statement of the law. Under such circumstances malice may be presumed. It is not an inference which the jury is required to draw.
(Stewart
v.
Sonneborn,
98 U. S. 187, 193.) The attention of the trial judge, however, was not called to this error by any exception. Nor do other exceptions as to the exclusion of evidence and as to the refusal of various requests to charge justify a reversal of the judgment appealed from.
The judgment must, therefore, be affirmed, with costs.