
    ABRAHAM ACKERMAN, Plaintiff, v. GEORGE JONES, President, &c., Defendant.
    I. Libel.
    1. Privileged, publications.—Judicial proceedings.—Reporters,—Editors and proprietors of newspapers.
    
    1. No action will lie against such editors, &c., for the publication of a fair ana true report of a judicial proceeding, except on proof of malice in the making such report, which is not to be implied from the fact of the publication.
    See act of 1854, ch. 150.
    The act of 1854 is declaratory of the common law,
    3. Third person. The fact that he who claims to be libeled by the report was not a party to the judicial proceeding, does not affect the privilege.
    3. Judicial proceeding.— What is within the statute.
    
    
      a. An ex-parte affidavit presented to a police magistrate to obtain a search warrant.
    4. Fair and true repaid.—What is.
    
    
      a. Where the affidavit states that affiant had probable cause to suspect and did suspect that letters written and addressed to him, and being his property, and also a check for thirty dollars, indorsed to his order, and being his property, had been feloniously taken, stolen and carried away from.his safe by one A., at the instigation -and by the direction of B., and then set forth the reasons for the suspicion, a report, stating that the affiant appeared before a police magistrate and stated . that several important letters and a check for thirty dollars were taken from his safe by a private detective named A., at the instance of B., a banker; that B. was arrested and taken to the station-house, where the letters were found in his possession, and then he was discharged from custody, and the police magistrate retained the letters in his possession for the present (there being no evidence" that the letters were found in the possession of B., or that the" magistrate retained them), is a fair j and true report; consequently privileged, and an action} by A. for libel; founded thereon, cannot be sustained. /
    
    
      5. Malice.—Letter advising editor of the falsity of the charge, and requesting him to communicate with plaintiff's attorney as to a retraction and redress of the grievance.
    
    1. Taking no notice of the letter is not evidence of malice.
    6. Falsity of charge.—Evidence of, not admissible.
    
    1. Where the report is privileged, and that constitutes the defense, evidence of the falsity of the charge is inadmissible.
    7. Question of law as to whether a report ispi-ivileged, when.
    
    When the question depends wholly on a comparison of written judicial proceedings, and the report thereof, there being no ambiguity of language.
    1. Rule applied in this.
    Before Freedman, Curtis and Speir, JJ.
    
      Decided January 31, 1874.
    Exceptions ordered to be heard at general tenr.
    This action was brought by the plaintiff-, a private detective or police officer, to recover damages of the defendant, for publishing an alleged libelous article in the ¡New York Times newspaper.
    The complaint alleges that on October 31/1871, the defendant maliciously composed and published in said Times an article setting forth that one John T. Burleigh appeared before Judge Shandley, a police justice, at the Jefferson market police court, and stated that several important letters and a check of thirty dollars were stolen from his safe by a detective named Ackerman, at the instance of Emil Justh ; that Burleigh did not make any such statement in his said affidavit, and that, by reason of the publication, the plaintiff was injured in his reputation and credit as such detective, and otherwise injured.
    The answer admits the publication of the matter complained of, and avers that the publication was privileged, and was made without malice; that said Burleigh did appear before Judge Shandley, who at that time was and now is a police justice, and empowered by virtue of his office to administer oaths and conduct judicial proceedings, and that the affidavit was openly and publicly made in the course of a regular proceeding in the court wherein the People, &c., on the complaint of said Burleigh, were plaintiffs, and Emil Justh was defendant. That the affidavit forms part of the public records of the court. It denies that the publication was made with any malice or evil intent, or that the plaintiff was in fact injured thereby.
    On the trial, plaintiff read in evidence the affidavit of Burleigh, which was as follows :
    
      “ Police court, Halls of Justice.
    
      “ City and county of Hew Y'ork, ss. :
    
    
      “ John T. Burleigh, of No. 23 Bey-street, in the city of Hew York, being duly sworn, deposeth and saith, that at various times from about September 6, to October 6, 1871 (especially at' the last mentioned date), at the city of Hew York, was feloniously taken, stolen and carried away, the following property, to wit: Certain letters written by various parties, addressed to, and" the property of this deponent, also cer tain receipts for money paid by deponent, and a certain check drawn on the Hational Bank of Hew York, by W. W. McFarland, for the sum of thirty dollars, bearing date about October 3, 1871, and indorsed to the order of deponent and his sole and exclusive property. That deponent has probable cause to suspect, and does suspect that the said property was feloniously*taken, stolen, and carried away by one A. Ackerman, at the instigation and by the direction of one Emil Justh, and that the same is now in the possession of said Emil Justh, and that the said property is now concealed in an office occupied by said Emil Justh, and in which he is engaged in business, in the premises known as Ho. 53 Exchange Place, in the said city of New York, and in the dwelling house occupied by said Emil Justh, known as No. 117 West 13th-street, in the city of New York, and that the grounds upon which the said suspicion is based, are as follows: That deponent has an office at No. 23 Dey-street, in the city of New York, and that in a safe in said office, the said letters, receipts and check were kept. That at or about 1:30 o’clock in the afternoon of October 6, 1871, deponent opened his safe, and observed, that the said letters, receipts and check were therein, and all in one bundle. That at or about fifteen minutes to two o’clock in the afternoon of the said last mentioned date, the said Ackerman called on deponent at his said office, and took a seat near deponent, who at this time, was sitting at his desk, and immediately in front of the said safe, the door of which, being at that time open ; that between the said hours of 1:30 p. m., the time said Ackerman came in, no other person was in the vicinity of the said safe; that the said Ackerman at such time stated to deponent that the object of his visit was, to render the deponent important service by imparting to him some information which he possessed in regard to said Justh, and which deponent could make use of, very much to the injury of said Justh. Thai deponent suspected that such avowed object was expressed by the said Ackerman, as a means of concealing his real design, and knowing that he was in the employ of said Justh, refused to consent to any information upon the subject before alluded to, being imparted to him (the deponent). That deponent at that moment, having occasion to attend to some business at or near the door of his said office, left his desk for that purpose, and when he returned (which was after an interval of a few minutes), the said Ackerman left his seat, which was then right against the door of the safe aforesaid, and departed accompanied by deponent after carefully relocking the said safe and depositing the key thereof in his pocket; that about fifteen minutes thereafter deponent returned to Ms said office, and upon unlocking the said safe with the object of removing therefrom the said check for the purpose of deposit before the close of the bank, discovered that the said bundle of letters and other papers, together with the check, had been abstracted from the said safe. Deponent further says that the said Justh for about three months past has been engaged in intercepting letters addressed to and intended for deponent, and in circulating false and defamatory reports concerning him, with the hope to injure his business position, and has also combined against him for such purpose, and has also, at various times within the past three months, offered money to certain parties for information which could be used to the detriment of deponent, and that in the event of a litigation ensuing between the deponent and the said Justh, arising out of any proceeding from such conspiracy, circulation of libelous and slanderous reports, &c., the said letters, receipts and checks, would constitute very important evidence to deponent and injury to said Justh, which is well known to the latter. Deponent avers that he verily believes that if either the said Ackerman or his employer, the said Justh, were arrested for the crime before mentioned, the latter would place or cause to be placed the said letters, receipts and check in a position whereby they would be inaccessible, and thus render all chance of legal possession unavailable to deponent. Wherefore, process is requested by this deponent to search the office of said Emil Justh, known as 53 Exchange Place, and the house aforesaid, known as 117 West 13th-street, as aforesaid.
    “ (Signed) John T. Burleigh.
    “ Sworn to before me, this 18th ) day of October, 1871. j
    “ E. J. Shandlet, Police Justice.”
    
      Upon the back of this affidavit were the following indorsements:
    “Police Court, Second District—The People, &c., on the complaint of John L. Burleigh.
    “Emil Justh’s affidavit for search warrant, dated October 18th, 1871. S. Magistrate.
    “ Sergeant McComb, officer. Search warrant 20 October, 2 p. m., deft, discharged.”
    He then read in evidence the article complained of, which was as follows :
    “ Singular Complications in a Divorce Case.—
    On Wednesday last, John T. Burleigh, of Ho. 23 Deystreet, appeared before Judge Shandley, at Jefferson market police court, and stated that several important letters and a check for thirty dollars were stolen from his safe by a private detective named A. A. A ckerman, at the instance of Emil Justh, a banker, residing at Ho. 63 Exchange Place. Yesterday Sergeant McComb proceeded to the residence of Mr. Justh, to arrest him on the charge, but the latter refused to accompany him to the station, and when force was about to be used, presented a revolver at the officer’s head. Patrolman Tully witnessed the occurrence, and before the weapon could be discharged wrenched it from his hand. He was then conveyed to the station, where the letters were found in his possession. These letters, Justh alleges, afford proof of the seduction of his wife by Burleigh, and he desired to use them in proceedings for a divorce now pending. Justh was discharged from custody, and Judge Shandley retained the letters in his possession for the present.”
    He then read in evidence ihe following letter, which was proved to have been delivered:
    
      “ Law Office of D. S. Riddle,
    
      “§7 Park Row, H. Y.,
    “ 15th Nov., 1871.
    “Oeo. Jones, Ésq.,
    £ ‘ Prest. N. Y. Times Pub. Co.
    
    “Dear Sir: Mr. A. Ackerman has complained to us that the article published in your paper of the 21st of October, on page 4, and entitled ‘ Singular Complications in a Divorce Case,’ is totally false, untrue and malicious, and has desired us to commence suit against your company for libel.
    “Before we proceed in the matter, however, we shall be pleased to have you communicate with us in regard to a retraction of the offensive article, and listen to any suggestion you may propose looking to a redress of the grievance to which the plaintiff has ' been subjected.
    “ Respectfully,
    “ Dan’l S. Riddle,
    Att’y for Plaintiff.”
    He then proved that the article published in the New YotTc Daily Times was never retracted. Plaintiff’s attorney offered to prove by plaintiff that the . charge of his having taken any letters or money from Mr. Burleigh’s safe, or from his office, was wholly false and untrue.
    Offer objected to by defendant’s attorney, and excluded. Exception taken by plaintiff.
    Plaintiff rests.
    Defendant moved to dismiss complaint of plaintiff on the grounds—
    1st. That said publication was a privileged communication under the statute.
    2nd. Ho proof of malice.
    3rd. That the publication is a fair and true report of the affidavit.
    
      Motion was granted and complaint dismissed; to which, ruling plaintiff’s attorney excepted.
    The court ordered the exceptions to be. heard in the first instance at general term.
    
      D. S. Riddle, attorney and of counsel for plaintiff, urged:—I.
    Because the publication of the defamatory matter was not privileged, under the statue passed April 1, 1854, Burleigh’s affidavit was an ex-parte proceeding, and therefore not privileged (Stanley v. Webb, 4 Sandf. 28, 30 ; Matthews v. Beach, 5 Id. 264). These decisions were prior to the act of 1854, but that act is but delaratory of the common law .(Edsall v. Brooks, 2 Robt. 32). These decisions are supported by the wording of the act of 1854. The words of said act are, “ Of any judicial, legislative or other public official proceedings, &c.” The proceeding must be a public one ; whereas, this ex parte affidavit was private for the time being.
    II. The defamatory article is not a fair and true report of the statements and proceedings before the police-magistrate. Such report must not only be true—it must be fair. . If there are qualifying omissions or-additions, it is not fair. Here, the article sets forth, that Burleigh stated that the letters and check for thirty dollars were stolen by the plaintiff, and then speaks of Justh’s arrest, his showing fight, and the finding of these very letters on his person. This latter is matter of inducement, and in the minds of readers would go to confirm the theft charged against the plaintiff. But the proceeding before the magistrate, so far as in evidence here, is this: Burleigh in his affidavit says he has probable cause to suspect and does, suspect that the said property was felonously taken, stolen, &c., and then proceeds to give the grounds of his suspicion, while there is no evidence of Justh’s arrest; his showing fight and the finding of the letters on his person., Bow, a person reading Burleigh’s affidavit, with his grounds of suspicion, would say the chances a,re altogether that he was mistaken, and the plaintiff did not take the letters or money. Is this article clearly a fair and true report? Is there any doubt on that point ? If there is, it was a question of fact for the jury, and the court erred. Where there is any doubt the jury must determine. In Lewis v. Walters, 4 Barn. & A. 612, an action of libel similar to this, Abbott, Ch. J., says: “The defendant ought to have detailed and transcribed in the publication the evidence of the witness. If he had done so, his readers might then have judged for themselves. If a party is to be allowed to publish what passes in a court of justice, he must publish the whole case, and not merely state the conclusions which he himself draws from the evidence.”
    III. Where an article may be libelous it cannot be taken from the jury (Fray v. Fray, 17 C. B. [N. S.] 605). Here the court say: “We cannot take upon ourselves to hold that the letter in question can, under no circumstances, be libelous. The matter must go before a jury.” This was a demurrer (also, Teacy v. McKenna, 4 Irish, 374). In Alexander v. N. E. Railway Co., 11 Jur. (N. S.)part 1, p. 619, the published article stated that plaintiff had been sentenced to imprisonment for three weeks, while on the trial it appears the imprisonment was only for two weeks. Held that it was a question of fact for the jury, whether the ■defendant made a fair and true report of the proceedings in court (see also, Huff v. Bennett, 4 Sandf. 129, in this court).
    IY. The element of malice is at the bottom of a libel. In the eyes of the law, every malicious publication is a wrong, and like every trespass, gives ■ the injured party a right of action, but the law makes an •exception and says that a fair and true report of statement, &c., in judicial proceedings, shall not be deemed malicious, and therefore, not actionable. But a departure from a fair and true report, at once raises a question of fact for a.jury. Where there is a departure it is for the jury to say whether it is a substantial departure and the extent thereof.
    Y. There is no substantial difference between the defense of privileged communications and that of justification by showing the truth of the libel. The same-reason applies to both. The law in both presumes the ■ absence of malice, and therefore gives the injured party no action, both being damnum absque injuria. But where justification is pleaded, it must be as broad as the charge, that is, it must substantially meet the charge. Thus, the fact that the plaintiff had on one occasion smuggled, is no justification of the charge that he had carried on smuggling as a business (Still-well v. Barter, 19 Wend. 487). A proof of smuggling before the war is no justification of a charge of smuggling during the war., So where the charge was, that the plaintiff (a brewer) caused his malting establishment to be supplied with impure and unwholesome water, is not justified by the statement that the plaintiff’s establishment was supplied with such water (Fidler v. Delevan, 20 Wend. 57).
    YI. The foregoing citations show that the law holds the publisher of defamatory matter strictly to the rule made in his favor, and any appreciable departure therefrom starts a question of fact for a jury, so sensitive is the law as to the reputation of the citizen.
    VII. There was also a question of actual malice in this case. Before action was brought a letter was sent to the defendant, asking him to retract. This was refused. Did not this show malice? In Hotchkiss v. Olphant, 2 Hill, 515, the court says: “Where the defendant, when advised of his error,-hesitates to correct it, the case rises to one of preme iitated wrong, of settled and determined malignity toward the party injured.” The court of appeals held in Fry r. Bennett, 28 N. Y. 328: u Any act or language of defendant tending to prove malice on his part in the particular libel, may be proved.” But what is the use of proving it, if it is afterwards taken from the jury % Where during the trial the plaintiff offered to accept an apology and a . verdict for nominal damages if the defendant would withdraw his plea of justification, which he did not attempt to prove, and the defendant refused, it was held that this refusal was proper to be left to the jury with reference to the question of malice (Simpson v. Robinson, 12 Q. B. 511; S. C., 13 Jur. 187). So where the publisher of a libel, to whom complaint was at once made, and the falsity of the publication shown, delayed to retract until after suit brought, wherein he made full retraction, this notification and delay were held properly left to the jury as evidence of negligence, and a verdict for very large damages was not disturbed (Smith v. Harrison, 1 Fost. & F. 565.
    VIII. The nonsuit should be set aside and a new trial ordered, with costs to abide the event.
    
      Beardsley ds Cole, attorneys, and Hamilton Cole, of counsel for defendant, urged:—I.
    The dismissal of the complaint was correct, provided three things concurred, viz: that the publication was conditionally privileged ; that there was no proof of malice ; that the publication was a fair and true report of the affidavit put in evidence. The publication was conditionally privileged both at common law and under the statute of 1854 (Laws of 1854, p. 314; Townshend on Libel, die. 2 ed. 364). There is no distinction between a mere ex parte investigation before a magistrate and the regular proceedings in a court of law (Pinero v. Gtoodlake, 15 Law Times, 676; Ryalls v. Leader, 5 Law Rep. 1 Ex. 296 ; Wason v. Walters, Law Rep. 4 Q. B. 93; Lewis v. 
      Levy, Law Jour. N. S. vol. 27, p. 282, part 2; Henderson v. Broomhead, 4 H. & N. 569; Ed sall v. Brooks, 17 Abb. Pr. 227; Townshend on Libel, &c. 2 ed. 374). Even though the publication of the affidavit would not have been privileged if made before any appearance on the part of the defendant, still so soon as he appeared and had an examination before the magistrate, the affidavit became a part of that regular judicial proceeding, and the privilege attached to the proceeding attached also to, the affidavit as a part of it. The fact that the character of a third person was affected by the affidavit does not affect the privilege (Ryalls v. Leader, Law Rep. 1 Ex. 296; Henderson r. Broomhead, 4 H. & N. 569). It was conceded by the plaintiff at the trial that the publication was conditionally privileged.
    II. There is no proof of malice, unless malice may be presumed from the fact that no notice was taken of the letter written to the defendant by the plaintiff’s attorney before the commencement of the action. To refute such an idea an examination of the letter is alone necessary.
    III. The publication was a fair and true report of the affidavit pub in evidence, and this, under the circumstances, was a matter of law for the court. To determine this question required merely a comparison of two written instruments. There was no ambiguity in the language. It then lay with the court to determine the relative weight of the words used. Even conceding that the question was properly one of fact for the jury, still in cases where the facts are so strong that if the j ury find against them, the court would be bound to set aside the verdict, it is the duty of the court to take the cause from the jury.
    IY. The exception taken by the plaintiff is untenable. The defense did not set up the truth of the allegations contained in the publication. Under the pleadings their truth or falsity was entirely immaterial. The exceptions should be overruled, and judgment ordered for the defendant, with costs.
   By the Court.—Speir, J.

The appellant’s counsel claims that the publication of the alleged defamatory matter contained in Burleigh’s affidavit was an éxparte proceeding, and therefore not privileged, relying chiefly on the case of Stanley v. Webb (4 Sandf. 28). In that case the plea of the defendants was that the publication was a true, fair and correct account of public judicial preceedings before a magistrate, and the plea contained the affidavit upon which the complaint against the plaintiff was founded ; and it further averred that other proceedings were pending before the magistrate, growing out of a complaint made by the plaintiff. The replication to this plea charged that the complaint was primary and original, and made ex parte in the absence of the plaintiff, and was false and libelous, and the defendant demurred. The question presented for the consideration of the court was whether the publication was privileged. After an examination of a large number of authorities, and giving many cogent reasons of public policy, the court held that where the publication of such proceedings was productive of good, and promoted the ends of justice, the publisher must find his justification, not in privilege, but the truth of the charges. In other words, the privilege was conditioned on the fact that the matter published should not be false or libelous, but a fair, true and correct statement, and without malice. This decision was made before the statute of 1854 was passed, and was concurred in by the full bench (Laws of 1854, ch. 130, § 1). This act was simply declaratory of the common law (Townshend on Blander and Libel, 2 ed. 364). As applied to this cáse, the principle may be stated as follows : Reporters, editors, and proprietors of newspapers are entitled to entire immunity for what they may publish of any judicial proceeding in their several places, and in the discharge of their respective duties, if it is a fair and true report thereof, except upon actual proof of malice in making such report; and malice is not to be implied from the fact of such publication.

This is the doctrine of the later English decisions. By them, independently of any statute, it is held that the publication of the proceedings upon a judicial trial, fairly reported, and without express malice, is not actionable.

The foundation of the principle seems to be that the public good requires that the proceedings in the courts of justice should be conducted openly. Pollock, Ch. B., in Ryalls v. Leader, Law Rep. (1 Exch. 296), discussing this subject, says: “We ought, in my opinion, to make as wide as possible the rights of the public to know what takes place in a court of justice and to protect a fair, tona fide statement of proceedings there.”

There is no distinction between a mere ex parte investigation before magistrates, and the regular proceedings in a court of law, and plaintiff cannot set up, in answer to the defense of privilege, that the libel complained of was a report of a mere preliminary investigation before a magistrate. Whatever may have been the distinction heretofore, it is abolished now (Peniro v. Goodlake, 15 Law Times Rep. 676 ; Wason v. Walter, Law Rep. 4 Q. B. 93 ; Henderson v. Broomhead, 4 Hurls. & N. 569; Perkins v. Mitchell, 31 Barb. 471).

In the case of Ryalls v. Leader (supra), the court say that proceedings held in jail before a register in bankruptcy under the bankrupt act, upon the examination of a debtor in custody, are judicial and in a public court.

The affidavit in question became a part of the regular judicial proceedings in a criminal suit by the People on the complaint of Burleigh. The defendant in the suit, Justh, was arrested and discharged. Without the affidavit of Burleigh, the record would not be complete. If fairly and truthfully published, the public had a right to know it. The plaintiff was a public officer, and the publication was for a justifiable purpose.

The fact that the character of a third person was affected by the affidavit does not affect the privilege (Henderson v. Broomhead, 4 Hurlston & Norman, 569 ; Ryalls v. Leader, Law Rep. 1 Ex. 296). It is held in these cases that no action lies against a party who in the course of a cause makes an affidavit in support of a summons taken out in such cause which is scandalous, false and malicious, though the person scandalized, and who complains, is not a party to the cause.

The only question remaining is, was the publication a fair and true report of the affidavit put in evidence ? Upon a careful examination of the affidavit and the publication complained of, I am unable to detect any discrepancy between them in the information conveyed by either. There is no ambiguity in the language. Indeed, the appellant’s counsel, in his argument, did not so much complain that the matter published was not true, as that it was not fair. The distinction in this case is not plain to my mind. He claimed, however, that the question should be submitted to the jury, whether the defendant had made a fair and impartial statement. As to this, the answer would be, anything that is true is fair. Under these circumstances, the construction of the libel is an unmixed question of law which the court above is competent to determine. In all civil suits where the question of libel arises solely upon the face of the publication, it is a question of law upon which the jury must follow the direction of the court (Matthews v. Beach, 5 Sandf. 256). Had the case been submitted the jury, and they had found for the plaintiff, the court would have been bound to set aside the verdict. As malice under the principle hereinbefore stated cannot be inferred from the mere fact, of publication, I see no ground for raising any presumption of malice in the case, unless it is to be presumed from the fact that no notice was taken of the letter written to the defendant by the plaintiff’s attorney demanding satisfaction before he began the action. This is no evidence of malice. It seems quite impossible to discover any malice in refusing to answer this letter, which calls for redress of a grievance which had not been inflicted.

The exception taken by the plaintiff to the ruling of the court on his offer to prove that the charge of his having taken any letters or money from Burleigh’s office, was false and untrue, is not well taken. The defense did not set up the truth of tho allegations contained in the publication—under the pleadings, their truth or falsity is immaterial.

The exceptions are overruled, and judgment is ordered for the defendant, with costs.  