
    Robert E. Dooley, Respondent, v. The Press Publishing Company, a Domestic Corporation, Appellant.
    Second Department,
    December 24, 1915.
    Libel—words libelous per se — mistake as to criminality of act charged as crime—use of free passes by police officer — investigation by grand jury.
    An article is libelous per se which charges a person with an act which the writer or publisher states to be a crime, although as a matter of fact the act is not punishable as a crime. It is the charge of criminality and not the legal accuracy of the charge that imparts the libelous quality.
    To state of a person that he is desired as a witness before a grand jury in ease he waives immunity imports that he is charged with a punishable offense.
    Putnam, J., and Jenks, P. J., dissented, with memorandum.
    Appeal by the defendant, The Press Publishing Company, from a judgment of the Supreme Court in favor Of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of February, 1915, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 20th day of February, 1915, denying defendant’s motion for a new trial made upon the minutes.
    Action for libel. The article complained of, among other things, charged the plaintiff, a police officer in the city of New York, with riding free on passes issued by a taxicab company and also stated that if the plaintiff with others would go before the grand jury and waive immunity an assistant district attorney would be glad to have them repeat their denials under oath, etc.
    
      Howard Taylor, for the appellant.
    
      Henry F. Cochrane, for the respondent.
   Thomas, J.:

There are no indications that the court considered that the article charged the defendant with a crime that is in truth recognized as such by the law of the State. But he did authorize the jury in its judgment to find that the article charged that the plaintiff had done something which was the subject of a criminal prosecution. The inquiry authorized was not whether the plaintiff’s act as charged was legally a crime, but whether the defendant held it out to be such. The article was libelous per se, according to the charge, not because it accused the plaintiff of an act that is by law punishable as a crime, but because it held the plaintiff up to public condemnation for doing what the defendant, mistakenly or otherwise, estimated to be a crime. One may not in writing expose another to obloquy, scorn and hatred by putting him in the category of a legal offender, and then escape upon the contention that after all he was not legally punishable. In such case the charge of criminality, and not the legal accuracy of the charge, imparts the libelous' quality. Hence it is not necessary for the offended person to be able to state what crime recognized by law was invoked against him by the libeler, and in the present case the inquiry as to what particular crime the plaintiff referred to in pleading the libel is- unimportant. There may be no law that makes the plaintiff’s act criminal. The important fact is that the offender assumed that there was some such law, and falsely publishes the plaintiff as an offender against it. The injured person is not required to search for the law or to be conscious whether it exists or not. When he .is declared to have the status ascribed by the article to the plaintiff, and to be desirable as a witness before a grand jury in case he waives immunity, it is inferable that he is charged with an offense that is punishable. What it is, he is not required to know or to conjecture. The court was asked to charge that “The article in question does not charge the plaintiff with any crime.” Perchance it did not charge him with a legal offense, but that it charged that he had done something that the defendant considered criminal was properly found. That means that the defendant did charge him with crime, although it may have been mistaken as to the act being a legal crime. If the defendant wished a charge that the act of accepting and using passes as charged was not a crime, it should have asked for it. The attitude of the court was quite plain. It was not treating of actual criminal offense, but the declaration by defendant of some criminal offense, and to have charged as requested would have withdrawn substantially the charge. There are no errors that demand reversal, and the verdict is not excessive for an offense done with such rash disregard of plaintiff’s rights.

The judgment and order should be affirmed, with costs.

Carr and Stapleton, JJ., concurred; Putnam, J., dissented in separate memorandum, with whom Jenks, P. J., concurred.

Putnam, J. (dissenting):

The jury were left in doubt, whether, if a policeman accepted free transportation, such' act was a crime, or whether the idea of a criminal offense came merely from the words “ grand jury” and “immunity.” I think it should have been made clear to the jury, what is here conceded, that for a policeman to take a pass was not a crime. Hence plaintiff could have been asked on cross-examination what violation of law his complaint intended. After counsel in his summing up read to the jury from article 13, section 5, of the Constitution, the court should have dispelled this uncertainty by granting the instruction asked. This instruction was material to the amount of damages. A reference to an investigation by the grand jury, in these days especially, would signify little, as compared with a direct charge of an act within the Penal Law. Hence I dissent.

Jenks, P. J., concurred.

Judgment and order affirmed, with costs.  