
    Kasryel H. Sarasohn, Appellant, v. Workingmen’s Publishing Association, Respondent, Impleaded with Others.
    
      Libel—report of a meeting published in a newspaper — when not privileged —proof . that the report was correct is competent in mitigation of damages
    
    Section 1907.of the Code of Civil Procedure, providing that an action “ cannot he maintained against a reporter, editor, publisher or proprietor. of a newspaper for the publication therein of a fair and true report of any judicial, legislative or other public and official proceeding without proving actual malice in making the report,” does not apply to a meeting of the character described in the following ¡article : “ Mr.-Sarasohn, to where goes the box-money?. The American consul of Jerusalem holds a speech about it. The- large hall of Hebrew Institute was last night converted in a piece of Jerusalem. Matured Hebrews who had just left the ‘ Menoras Hamoa ’ and ‘ Chaie Adam,’ filled the hall, and upon the platform Rabbis alone sat. It was a meeting called by the ‘ Kollel America,’ and the object of it was to place under covér to the Kol Israel Jewel, Kasryelke Pushke. The question which was once placed to Richard Croker, ‘ where did you get it,’ * * * to whither go the thousands of Maier-Bal-A’Ness boxes. The chief attraction was the American consul in Jerusalem, Mr. Edwin S. Wallace, who there held a speech. A speech it was — not to sin with the words — really as from an American politician, a paste . from Pasteland, but that is a separate matter. Far importance it was which he told, that from the §80,000, which the Kol-Hakollohim, of which Mr. Sarasohn is the trustee, collects from the Maier-Bal-A’Ness boxes for one year in America, there comes in Jerusalem whole §8,000 and from that the American Jews in Jerusalem receive almost nothing. Their wives and children used to come to him in the consulate asking bread. He says that the money remains sticking to long fingers here in New York, but he did not want to mention .names. He only asked the question ‘ To where goes it ? ’ (the Jews murmured, perhaps Sarasohn knows)'.”
    
      Semble, that such ah article falls within the meaning of section 1908 of the Code of Civil Procedure, providing that section 1907- does not apply to a libel contained in the heading of the report or in any other matter added by any person concerned in the publication or in the report of anything said or done at the time and place of the public and official proceeding, which was not a part thereof.
    
      Semble, also, that while proof that the publication was a fair and true report of the proceeding would not constitute a defense, it would, if pleaded in mitigation, be competent for that purpose as bearing upon the good faith of the defendants and tending to disprove actual malice.
    Appeal by the plaintiff, Kasryel II. Sarasohn, from an interlocutory judgment Of the Supreme Court in favor of the defendant, the Workingmen’s Publishing Association, entered in the office of the clerk of the county of New York on the 25th day of April, 1899, overruling the plaintiff’s demurrer to the separate defense contained in the amended answer of said defendant.
    
      Abraham H. Sarasohn, for the appellant.
    
      Leon A. Malkiel, for the respondent.
   McLaughlin, J.:

This action is brought to recover damages alleged to have been sustained by the plaintiff by reason of the publication in a certain newspaper, called Das Abent Blatt, of the following article:

“ Mr. Sarasohn, to where goes the box-money ? The American consul of Jerusalem holds a speech about it. The large hall of Hebrew Institute was last night converted in a piece of Jerusalem. Matured Hebrews who had just left the 4 Menoras Hamoa ’ and 4 Ohaie Adam,’ filled the Hall and upon the platform Rabbis, alone sat. It was a meeting called by the 4 Kollel America,’ and the object of it was to place under cover to the Iiol Israel 'Jewel, Kasryelke Pushke. The question which was once placed to Richard Choker, 4 where did you get it,’ * * * to whither go the thousands of Maier-Bal-Á’Ness boxes. The chief attraction was the American consul in Jerusalem, Mr. Edwin S. Wallace, who there held a speech. A speech it was — not to sin with the words,— really as from an American politician, a paste from Pasteland, but that is a separate matter. Far importance it was which lie' told, that from the $80,000, which the Kol-Hakollohim, of which Mr. Sarasohn is the trustee, collects from the Maier-Bal-A’Ness boxes for one year in America, there comes in Jerusalem whole $6,000 and from that the American Jews in Jerusalem receive almost nothing. Their wives and children used to come to him in the consulate asking bread. He,says that the money remains sticking to long fingers here in New York, but he did not want to mention names. He only asked the question 4 To where goes it ? ’ (the Jews murmured, perhaps Sarasohn knows).”

An answer was interposed, and the plaintiff demurred to the 4tli paragraph thereof which reads as follows: 44 Defendant further answering said complaint. alleges that the publication complained of in said complaint is a true, correct and impartial report of a public proceeding, and is, therefore, privileged.” The demurrer was overruled and the plaintiff has appealed.

Section 1907 pf the Code of Civil Procedure provides that “ an action, civil or criminal, cannot be maintained against a reporter, editor, publisher or proprietor of a newspaper for the publication therein of a fair" and true report of any judicial, legislative or other public and official proceeding without proving actual malice in making the report.” The respondents, the publisher and editors respectively of the newspaper referred to, claim that the article complained of comes within this provision of the Code, in that it was; a report of a public proceeding and, therefore, privileged. In this we do not agree; A meeting of the character of tho one described certainly does not come within the provision of the Code quoted, arid if it did, it would not aid the defendant to any material extent, because the following section (1908) provides that section 1907 does not apply to any libel contained in the heading of the report or in any other matter added by any person concerned in the- publication or in a report of anything said or done at the time and place of the public and official proceeding, which was not a part thereof. The libelous imputation in the article in its entirety is not so much in what was said at the meeting as in the insinuations and "inferences to be drawn from the report of the meeting. It is the extrinsic facts or the covert inferences which are to be drawn from the publication which give force to it.

But we are also of the opinion that while the facts alleged do not constitute a defehse, proof of the same will, nevertheless, be admissible upon the trial of the action, they being pleaded in mitigation of damages as bearing upon the good faith of the defendants in publishing the article, and as tending to disprove actual malice, and in mitigation of damages. (Bush v. Prosser, 11 N. Y. 347; Spooner v. Keeler, 51 id. 527.) We are, therefore, of the opinion that the demurrer was properly overruled.

It follows that the judgment appealed from must be affirmed, • with costs.

Yan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ-., concurred.

Judgment affirmed, with costs.  