Fulton v. Ingalls , 151 N.Y.S. 130 ( 1914 )

Burr, J.:

As the motion for judgment on the pleadings was made by the defendants, we are only called upon, at the present time, to consider the sufficiency of the complaint. We need not now consider whether defendant, the Richmond County Society for the Prevention of Cruelty to Children, is or is not a governmental agency, and whether it is or is not subject to the rule of conduct applicable to corporations generally. The only allegation in the complaint respecting it is that it is a corporation organized under the laws of the State of New York. We are not advised as to the extent of its powers or obligations.

The complaint does not, in express terms, recite whether the charges, which the defendants presented or caused to be presented to the police department, were in writing or oral. The Greater New York charter (Laws of 1901, chap. 466, § 300, as amd. by Laws of 1904, chap. 341) provides that “no member or members of the police force except as otherwise provided in this chapter [this case does not fall within the exception] shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or preferred against him or them, nor until such charges have been examined, heard and investígated before the police commissioner or one of his deputies, upon such reasonable notice to the member or members charged, and in such manner of procedure, practice, examination and investigation as the said commissioner may, by rules and regulations, from time to time prescribe.” By section 301 (as amd. by Laws of 1905, chap. 180) the police commissioner is given power to issue subpoenas, to administer oaths or affirmations, and the police commissioner and his deputies are authorized to conduct the investigations, which are spoken of as a “trial.” (Id. §§ 300, 301.) The charter further provides that any person making a complaint that a felony has been committed, may be required to make oath or affirmation thereto. (Id. § 301, ás amd. supra.) The complaint further alleges that defendants “ took charge of the prosecution of and actually prosecuted said charges and each of them before the Deputy Commissioner.” As plaintiff could only be tried upon written charges, and the charges upon which he was tried were “said charges,” the word “ said ” relating to the charges presented, it is a fair inference that the charges which defendants did present were in writing and not oral. These charges accuse plaintiff of acts criminal in their character. (Penal Law, § 2010.) And, in view of the provision that any person making a complaint that a felony has been committed, may be required to make oath or affirmation thereto, I think that it affirmatively appears that such charges were in writing. These charges constituted a libel per se, and were actionable, "unless it clearly appears upon the face of the complaint that the words were absolutely privileged (Tierney v. Ruppert, 150 App. Div. 863, or unless there was no publication thereof in the legal -sense of the term. If they were only qualifiedly privileged, if the defendant published words which were false, from evil motives and without any reasonable or probable cause to believe said charges or any of them to be true, the malice essential to a cause of action for libel may be found therefrom. (Newell Lib. & Sland. 477; Moore v. M. N. Bank, 123 N. Y. 420; Ashcroft v. Hammond, 197 id. 488; Dennehy v. O'Connell, 66 Conn. 175; Jackson v. Hopperton, 16 C. B. [N. S.] 829; Chaffin v. Lynch, 84 Va. 884.) The complaint contains allegations, not only that the charges were false and defamatory, but that they were maliciously presented and prosecuted, and that ‘ ‘ defendants did not have reasonable or probable cause to believe said charges or any of them to be true. ” I think also that the words were “ published ” within the meaning of the law of libel. When these written charges were presented to the police department, the purpose and object of such presentation was to cause plaintiff to be placed on trial thereon; and that this was done with defendants’ knowledge and consent sufficiently appeared from the allegations of the complaint that the defendants prosecuted said charges and participated in the trial thereof. A person who requests, procures or directs another to publish a libel, or connives at or assists in its publication, is liable therefor. (Newell Lib. & Sland. 300; Schoepflin v. Coffey, 162 N. Y. 12.) Were these charges, thus presented, an absolutely privileged communication ? Not unless the proceeding before the police commissioner was a judicial proceeding. Personally, I am inclined to think that such was the case. And, if it be contended that it was a civil judicial proceeding, then plaintiff’s personal rights were interfered with in consequence thereof, for it appears that, pending said charges, he was suspended from duty without pay, and temporarily disgraced in the department. (Willard v. Holmes, Booth & Haydens, 142 N. Y. 492; Halberstadt v. N. Y. Life Ins. Co., 194 id. 1; People ex rel. Kasschau v. Police Comrs., 155 id. 40; Matter of Greenebaum v. Bingham, 201 id. 343, 347; People ex rel. Shiels v. Greene, 179 id. 195, 199.) In any event, defendants must take one horn of the dilemma or the other. If the proceeding in which plaintiff was tried was a judicial oné, having been instituted maliciously and without probable cause, and plaintiff’s personal and property rights having been interfered with pending the same, an action for malicious prosecution will lie. If it was not a judicial proceeding, then an action for libel will lie. All that we are concerned with at present is, whether the complaint states any cause of action.

The order should be affirmed, with ten dollars costs and disbursements.

Thomas and Rich, JJ., concurred; Stapleton, J., concurred in result in separate opinion, with whom Carr, J., concurred.