
    William McClean, Resp’t, v. The New York Press Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 3, 1892.)
    
    1. Libel—Disorderly house.
    A publication charging that a certain house is disorderly, disreputable, or a bawdy house, refers entirely to the character of the occupants, and is not a libel merely on the house.
    3. Same—Parties.
    The fact that there are other occupants of said house besides plaintiff, does not affect his right to maintain an action for libel, especially where liéis the lessee of the whole house, and therefore responsible for its character.
    3. Same—Mistake.
    The fact that defendant intended to refer to another house, and not to plaintiff’s, is no answer to plaintiff’s right to recover, although it may go-to the question of exemplary damages.
    Appeal from judgment entered upon the verdict of a jury, and from order denying motion for new trial.
    
      J. W. Boothby, for app’lt; A. Jaretshy, for resp’t.
   Van Brunt, P. J.

This was an action for libel. It appears that the defendant was the publisher and proprietor of a newspaper published in the city of New York ; and that at the times mentioned in the complaint the plaintiff was and now is the lessee and occupant of No. 234 West Thirty-ninth street, in the city of New York, and that in May, "1890, the defendant published in its newspaper a map or diagram on ’ which were located and designated certain private houses, public buildings, schools and churches, including the premises above mentioned, by certain numbers, which numbers were explained in an explanatory note-published at the foot of the map, and in said explanatory note the-number opposite "the plaintiff’s house designated his house, No. 234 West Thirty-ninth street, “disorderly house” (meaningthereby, the complaint alleged, that the premises occupied by the plaintiff were occupied and used as a bawdy house, or house of prostitution.

Immediately after this publication, and down to the time of trial, the plaintiff and his family have been, from time to time, annoyed by visits from persons supposing that the house in question was a house of ill-fame, which had never occurred before the-publication.

The defense was that at the time of the publication complained of the defendant was engaged in an effort to suppress disorderly houses and other unlawful resorts, and that the designation of the plaintiff’s residence was a mistake, and that it was intended to designate No. 238 and not 234; and further that the defendants-corrected the mistake by publication in a later number of the paper.

The case was submitted to the jury who rendered a verdict in favor of the plaintiff; and from the judgment thereupon entered, and from an order denying a motion for new trial, this appeal is-taken.

The grounds urged by the appellant are. first, that the libel was .only the libel of a thing and not of a person; and that therefore unless the plaintiff had shown that he had sustained pecuniary loss as the necessary and natural consequence of the publication he could not recover.

It is manifest that this point is not well taken. The phrase used, it is true, is “ disorderly house.” But a house cannot be disorderly; n house is necessarily staid and sedate. It is only what is in the house that makes it lively or otherwise. Therefore, when a house is spoken of as being disorderly, disreputable, or a bawdy house, it refers entirely to the character of the occupants; and it is their character which fixes the character of the thing. When, therefore, a house is spoken of as disorderly or as a bawdy house, or as disreputable, it is that the occupants are disorderly, are lewd persons, or are disreputable. It is idle in a charge of this kind to talk about it being a libel of the house where a house is called disorderly.

It is further urged that the plaintiff did not prove the libel as •charged referred to him, in that it did not say or infer that the owner or lessee of the house was disorderly, or that such owner or lessee was in any way responsible for the character of the house and that it appeared that there were other people residing in the house at the time of the publication beside the plaintiff, and that he therefore was only one of the people who resided in the house.

We are not aware of any rule of law which provides that where a number of persons are libelled at the same time they are bound to unite in one action in order to get redress. It may be that the defendants are liable for a similar action to every occupant of the house. But the fact that there were other occupants in no way affected the right of the plaintiff to maintain this action.

It appears from the evidence in this case that the plaintiff’s name was upon the front door of the house, and that he was the principal occupant thereof, and had been so for many years, and had resided there with his family, and that he was the lessee of the whole house, and therefore was responsible for its character, and when his house is proclaimed to be a disorderly house, it necessarily implicated him as being guilty of a crime, because every person who occupies a disorderly house is guilty of a misdemeanor.

Even if it be the rule that where a class of persons is libelled an action does not lie by an individual of that class without allegation and proof of special damage, such rule has no application whatever to the case at bar.

The plaintiff was responsible for the reputation of the house in question as the lessee, and having control thereof.

It is further urged that the publication complained of was conditionally or qualifiedly privileged, and that in the absence of any proof of actual malice the plaintiff was not entitled to recover, .and the complaint should have been dismissed upon defendant’s motion.

It is claimed that the article shows that in the publication of it the defendant was engaged in an effort to accomplish a public benefit, and the publication was in the interest of social order and the well being of society in the city of New York; and a large number of authorities are cited, none of which, however, are applicable to the facts of the case at bar. The rule as adduced seems to be that where a communication is fairly made by a person in the discharge of some private or public duty, legal or moral, which he believes to be true, it is privileged. Therefore the public press may comment fully and freely upon all questions and matters of great public interest provided they keep themselves within the limits of an honest intention to discharge a public duty. But in the case at bar the publishers of the newspaper did not believe that the house in question was a disorderly house. On the contrary, they say that they had no intention of referring to this house, but to some other house in the neighborhood.

It has nowhere been decided as. yet that where either an individual or a public newspaper, intending to refer to B., makes a slanderous attack upon A it is a privileged communication. The plea of typographical error does not in any respect alter the situatian. It may go to the question of exemplary damages, but to the right of the plaintiffs to recover typographical errors form no answer. And this view of the case is strengthened when we consider the fact that as privileged communications are exceptions to the general rule which implies malice in a libelous publication, it rests with the person claiming the privilege to show that the case comes within the exception. Byam v. Collins, 111 N. Y., 143; 19 St. Rep., 581. And certainly this is not done by an attempt to show that they believed B. to be a thief, and by mistake made-the charge against A.

The further objection that the complaint alleged that the communication amounted to a charge that the plaintiff kept a bawdy house, and that the court held that it did .amount to that, and admitted evidence to sustain that charge, has no foundation. All that the court did in the trial of the case was to admit evidence of the results of this publication. The article in question charged a misdemeanor, and the words were, therefore, actionable per se,. and the plaintiff had clearly the right to prove what resulted from the publication.

Neither is there any foundation to the claim that it was error to allow the plaintiff’s counsel to recite instances outside of the evidence tending to prejudice the jury. The only reference in the summing up of the counsel which is contained in the record-is a reference to the sad results attending mistakes ; and this was-a legitimate line of argument to show what would be the result of the claimed mistake made by the defendant in respect to the plaintiffs.

We think that the judgment and order should be affirmed,, with costs.

Barrett and O’Brien, JJ., concur.  