
    John Raines v. New York Press Company, Limited et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 28, 1895.)
    
    1. Pleadings—Libel—Ikrelevant allegations.
    An allegation in a complaint for libel that the libelous words were copied in other papers and commented on generally by the press, should be stricken out as irrelevant.
    8. Same—Official investigation.
    A paragraph of such complaint that the senate ordered an investigation, of the matters contained in the publication, etc., is clearly irrelevant, though the article complained of suggested the investigation of the charges.
    8. Same. 1
    An allegation which states that the injury was to the plaintiff’s feeling® by reason of the libelous publication,—the charge being that the publication was malicious,—is permissible, as such injury to the feelings may constitute an item of damage ; hut the injury to the feelings on account o£ the investigations, rumors and suspicions stated, are irrelevant.
    4, Same. '1
    Where a motion embraces the striking out of both relevant and irrelevant matter in the same paragraph, it may properly be denied as embracing too much.
    Appeal from an order refusing to strike out part of the complaint.
    De Lancy Nicoll, for app’lts ; George Raines, for resp’t.
   WARD, J.

—The respondent (the plaintiff), John Raines, a member of the state senate, instituted an action against the defendants, claiming damages for a libel alleged to have been committed upon him by the Press, a daily newspaper published in the city of New York by the defendants, having a daily circulation of more than 100,000 copies. The libel consisted in charges and statements made in that paper in its issue of April 18, 1895, to the effect that the plaintiff, with other senators, had been guilty of corrupt and improper conduct with reference to a bill pending before the legislature of the state at that time. The complaint is very long, embracing many matters connected with the charges. The defendants moved at special term to strike out the following as irrelevant:

First: “And its editorials and news items were extensively copied and commented upon by all the leading newspaper press of the state of New York, and the plaintiff particularly states to the court that the libelous and defamatory publication in the defendant’s newspaper in its issue of April 18, 1895, which said publication is hereinafter particularly set forth, was so copied and commented upon by the general newspaper press of the state of

Also, second: “ The foregoing publication made of and concerning this plaintiff by defendants as aforesaid was made the subject of editorial comment and news items in all the newspaper press of the state of New York as well as of all important cities of the United States, and was given prominence as sensational news wherever such comment was made, as bringing into disrepute this plaintiff, as well as the bodies of men with which this plaintiff was associated in said publication.”

Also, third: That immediately after said publication was made the senate of the state of New York, by formal resolution, adopted in open session, ordered an investigation of all the matters contained in said publication, which investigation continued during a period of nearly one month, and the details thereof were made the subject of much comment. And this plaintiff was obliged to employ and did employ counsel in his behalf to attend upon all the hearings of the said investigation at great expense, and to personally devote a great deal of time to the gathering of evidence and personal attendance upon such investigation to establish the falsity of all the matters suggested and charged by all the matters of such publication by defendants. That such labors were protracted and exhausting, causing the plaintiff great mental anxiety, because of the difficulty of the investigation, and the false rumors and suspicions cahsed to be put in circulation by said publication, and the shame, reproach, ‘and infamy brought hereby upon the plaintiff.”

Also, fourth: “ That plaintiff was further subjected to the severe nervous strain, imparing plaintiff’s usual health, by the mortification incident to the publicity of all the charges, investigation, rumors, and suspicions aforesaid.”

Also, fifth: “ And because no vindication by any investigation would impair the injury done to the plaintiff’s reputation by the universal publication of the charges contained in said publicacatión of defendants.”

The motion to strike out prevailed at the special term as to paragraphs 2 and 5 aforesaid, but was/denied as to the other paragraphs, being 1, 8 and 4. The only appeal taken from the order was by the defendants from the refusal of the special term to strike out the last-mentioned paragraphs.

The learned judge at special term was clearly right in striking out the second paragraph. The first paragraph should also be stricken out for the same reasons that must have governed the special term in striking out the second. The first alleges in general terms that the defamatory publication was copied into other papers, and commented upon by the general newspaper press of the state, and the defendants’ editorials and trews items upon the subject were also copied and commented upon. This matter is of the same nature as appears in the second paragraph, and is subject to the same objections. Assuming that the purpose of the pleader was to enhance the damages by showing a repetition in other newspapers and by others of the libelous matter, it was too remote for that purpose. The wrongful repetition of a libel by third persons is not the act of the defendants, but of such third persons,- and, if damage comes thereby, the responsibility falls upon the third persons, who must respond. In Ward v. Weeks, 7 Bing. 211, the defendant was charged with saying of the plaintiff: “ He is a rogue and swindler. I know enough of him to hang him.” The special damage alleged was that one Bryer refused to trust the plaintiff with goods on credit.' The evidence was that the defendant had spoken the words to one Brice, who had at a subsequent time and place, and without any authority from the defendant, repeated the statement to Bryer, the repetition of which by Bryer, and not the original statement, occasioned the damage; and it was held that a nonsuit was properly directed. In Hirst v. Goodwin, 3 Fost. & F. 257, where'the plaintiff was a veterinary surgeon, and for the purpose of proving special damage a person was called who said he had ceased to employ the plaintiff since the words were spoken, but it appeared that he was not present when the defendant uttered them, and therefore must have heard them from a third party, it was ruled by Martin, B., that such evidence of damage was inadmissible ; the action for such damage should have been brought against the person who repeated the slander. The rule enunciated in these cases seems to be sustained by Terwilliger v. Wands, 17 N. Y. 54 ; Hastings v. Palmer, 20 Wend. 225 ; Keenholts v. Becker, 3 Denio, 346 ; Olmstead v. Brown, 12 Barb. 657. These cases were actions to recover special damage for words not slanderous per se, and in Terwilliger v. Wands the court says:

“ Where the words are spoken to one person, and he repeats them to another, in consequence of which the party of whom they are spoken sustains damages, the repetition is, as a general rule, a wrongful act, rendering the person repeating them liable in like manner as if he alone had uttered them. The special damages in such case are not a natural, legal consequence of the first speaking of the words, but of the wrongful act of repeating -them, and would not have occurred but for the repetition; and the party who repeats them is alone liable for damages,” citing Ward v. "W eeks, supra, and other cases.

Further on the court says, rather by way of supposition:

“ Occasions may doubtless occur where the .communication of slanderous words by a person who heard them will be innocent; and it is certainly reasonable, when repeated on such an occasion, ■and damage results as flowing directly and naturally from his own wrong.”

But the court adds:

“It is not necessary, in the present case, to decide whether the proposition is law.”

Beardsley, J., in Keenholts v. Becker, supra, makes the same suggestions as in Terwiliiger v. Wands, that a person may be responsible for a slander filtered through an innocent third person, in an action where special damages must be alleged and proved, and adds:.

“A different rule should, perhaps, govern where the repetition was itself slanderous, and the injurious consequences arose in part, at least, from the second slander.”

The reason for not charging the defendant with the damage that flows from a repetition of his words by others in actions for words not slanderous per se applies with greater force to actions of this character, where the words are libelous. The repetition of them cannot well be innocent. The repeater knows from the character of the words spoken that the charge is serious and destructive, and if he repeats them he does so at is own peril, and is a wrongdoer, and an action can be maintained directly against him by the party injured, independent of any remedy he may have against the person uttering the first slander or libel. In the case before us no names are given of papers or persons repeating this libelous matter. If this allegation is sustained, a door will be opened so wide that the end cannot be foreseen. If the defendants can be charged with the act of a publisher who publishes the libel from the columns of the defendant’s paper, they can also be charged with publication through a series of newspapers, one'taking from the other indefinitely; and where will the matter end? We have reached the conclusion that this paragraph should be stricken from the complaint as irrelevant.

The third paragraph sought to be stricken out is that the senate ordered an investigation of the matters contained in the libelous publication, etc. This is clearly irrelevant. It is not alleged that the investigation by the senate was sought by the defendants. For aught that appears, the investigation was sought by the plaintiff for his own vindication, as is frequently the case when members of legislative bodies are assailed, and their motives or characters traduced. It is true that the defendants’ newspaper article suggests that its charges ought to be investigated, but by whom, or what body or person, is not stated. The charges being of a criminal character, the most appropriate tribunal to investigate, them would-be the grand jury. The senator’s constituents might deem it their duty to investigate them, so too the senate, the body whose members had been libeled. It would not be claimed that the plaintiff would be entitled to damages or to be reimbursed for any expense that he might be put to in consequence of an investigation by his constituents, by detectives, by the grand jury, or other public ■body. We have reached the conclusion that this paragraph is clearly irrelevant, and should also be eliminated from the complaint.

This brings us to paragraph four;

“That plaintiff was further subjected to severe nervous strain, impairing the plaintiff’s usual health by the mortification incident to the publication of all the charges, investigations, rumors, aud suspicions aforesaid.”

In so far as this allegation states that the injury was to the plain tiff’s feelings by reason of the libelous publication, — the charges being that the publication was malicious,—it is permissible, as such injury to the feelings may constitute an item of damage, Brooks v. Harison, 91 N. Y. 92 ; but the injury to the feelings on account of the investigations, rumors, and suspicions stated are irrelevant. But as the motion embraces the striking out of both relevant and irrelevant matter in the same paragraph, it may properly be denied as embracing too much. This paragraph four will not he stricken out.

The conclusion, therefore, that we have reached is that paragraphs .1 and 3 shall be stricken from the complaint as irrelevant, and paragraph á shall remain, and the order of the special term should be modified accordingly; but as neither party has wholly prevailed upon this motion, it should be without costs.

All concur.  