Lee v. Brooklyn Union Publishing Co.

The rule is not questioned that a full, fair and impartial report of a judicial proceeding is qualifiedly privileged. That was the rule at common law and the statutes of this state so provide. (Laws of 1854, chap. 130; Code Civil Procedure, § 1907.) It is asserted, however, that there was no warrant in law in 1909 for the issuance of a magistrate's summons; that the magistrate had no jurisdiction of the plaintiff; that the charge made against him was not supported by an oath, and that the proceeding was not judicial.

It is to be observed that this is not a case of absolute privilege, which attaches to judicial proceedings, nor is it a case of qualified privilege resting upon some duty or interest of the one making the publication. Cases under those heads have little or no relevancy, and, as no case directly in point in this jurisdiction has been discovered by us or called to our attention, we must look to the reason upon which the claim of privilege in this case must rest. The obvious reason is the public interest in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice. For that reason it was early provided by statute in this state that "the sittings of every court within this state, shall be public, and every citizen may freely attend the same." (1 R.S. part 3, chap. 3, § 1; see, also, Judiciary Law, § 4.) The public generally may not attend the sittings of the courts, but they may be kept informed by the press of what goes on in the courts.

Does this case, then, fall within the reason for the rule? The proceeding was in open court where any citizen had the right to be. The magistrate assumed to act as such. The inquiry related to a matter of which he had jurisdiction. Under those circumstances we consider it unimportant to the question in hand how his jurisdiction was invoked or exercised, or whether he in fact had jurisdiction of the person of the accused. The reporter could not be expected to know whether all of the requirements of law had been complied with, or whether everything said in the course of the proceeding was strictly relevant to the subject of the inquiry. He was required, if he made any report at all, to make it full, fair and impartial, but he was not bound, nor was the defendant bound at its peril, to determine doubtful questions of law. The point is that the proceeding was one which the public had the right to hear and the defendant had the right in the public interest to report.

While we have found no controlling authority in point, the English decisions strongly support the conclusion which we have reached. (Lewis v. Levy, 27 L.J.Q.B. 282; Usill v. Hales, 47 L.J.C.P. 323; Kimber v. Press Association, 62 L.J.Q.B. 152.)

The judgment should be affirmed, with costs.

CULLEN, Ch. J., GRAY, WILLARD BARTLETT, CHASE, CUDDEBACK and HOGAN, JJ., concur.

Judgment affirmed.