Bennet v. Commercial Advertiser Ass'n

• Decision Date: 07 December 1920
• Citation: 129 N.E. 343,230 N.Y. 125
• Parties: BENNET v. COMMERCIAL ADVERTISER ASS'N.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 125

129 N.E. 343

BENNET

v.COMMERCIAL ADVERTISER ASS'N.

Court of Appeals of New York.

Dec. 7, 1920.

Action by William S. Bennet against the Commercial Advertiser Association. From an order of the Appellate Division, First Department (180 N. Y. Supp. 930), affirming a judgment of the Special Term (108 Misc. Rep. 354,178 N. Y. Supp. 305), which granted defendant's motion for judgment on the pleadings, plaintiff appeals.

Judgments reversed, and motion for judgment on the pleadings denied.

Appeal from Supreme Court, appellate Division, First department.

Bennet & Cooley, of New York City (Nathan Ballin of New York City, of counsel), for appellant.

Engelhard, Pollak, Pitcher & Stern, of New York City (Walter H. Pollak, of New York City, of counsel), for respondent.

CRANE, J.

[1] The defendant, taking a sentence from the case of Foot v. Pitt, 83 App. Div. 76,82 N. Y. Supp. 464, has succeeded in establishing that the complaint in this action does not set forth a libel. The sentence is:

‘The authorities are numerous to the effect that it is not libelous to charge a man with doing that which he may do lawfully.’ As applicable to the facts of the case this was a correct statement of the law. The publication charged that a property owner had gone to Albany to urge the passage of a bill for the construction of a sewer in front of his premises, actuated by a desire to relieve himself from a local assessment. To take this sentence, however, of Judge Bartlett's from its setting and use it as a general rule of law applicable to all publications must appear, upon a moment's reflection, contrary to well-settled principles.

The libel law has never been confined to charges of illegality or lawbreaking. Any false accusation which dishonors or discredits a man in the estimate of the public or his friends and acquaintances or has a reasonable tendency so to do is libelous. In Triggs v. Sun Printing & Pub. Ass'n, 179 N. Y. 144, 71 N. E. 739, 66 L. R. A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326, a libel was stated to be a written or printed statement or article, published of or concerning another, which is false and tends to injure his reputation and thereby expose him to public hatred, contempt, scorn, obloquy, or shame.

[2] The plaintiff in this case, William S. Bennet, was a representative in Congress from the Twenty-Third district of the state of New York. In the summer and fall of 1916, and during Bennet's campaign for reelection, the defendant in its paper, known as the Globe and Commercial Advertiser, published various articles regarding Bennet's actions as Congressman in Washington which tended to discredit him with his constituency and to disgrace him in the eyes of the public. They are set forth in 15 different causes of action alleged in the complaint. It is unnecessary to give them her in full, owing to their great length. For the purposes of this opinion references will later be made to those portions which are considered to be clearly libelous.

The defendant having answered, a motion was made for judgment upon the pleadings, which was granted at Special Term, and the complaint dismissed as not stating a cause of action. The Appellate Division affirmed the other of dismissal, one of the justices dissenting.

The charges, in substance, are that William S. Bennet, an attorney and counselor at law, in the state of New York, had been, prior to his election to Congress, attorney for Hudgins & Dumas, who had a contract for feeding the immigrants at Ellis Island; that Bennet, while in Congress, inserted a joker in the sundry civil bill, requiring the continuance of a privately operated commissary system on Ellis Island; that he did this in the interest of his former clients, and not for the public good. His actions, in this matter, it was charged, were not ass a representative of the people, but were for the interest of a private party, his former client, who would make huge gains by reason of these efforts. without specifying them by number as the whole complaint has been deemed bad. without specifying them by number as the whole complaint has been deemed bad.

All we desire to do in this opinion is to state wherein we think the plaintiff has been libeled, assuming the charges to be false.

‘Several years ago United States Senator Burton of Kansas was prosecuted for using his official position in favor of the interests of a client. Upon conviction he served a penal term in St. Louis. * * *

‘It is doubtful if Congressman Bennet is open to legal prosecution. Hudgins, the Ellis Island food contractor, says in a statement published today by the Times: ‘Mr. Bennet never acted as attorney for me or my firm except upon two occasions during his retirement from congress.’ * * *

‘Mr. Bennet seems to have full confidence that he is indictment-proof and is at full liberty to act in behalf of his former client as he might be expected to act if his former client were his present client. * * *

‘He celebrates his return by using his power to get the adoption of an appropriation bill ‘rider’ * * * under circumstances that suggest that when he is out of Congress Hudgins, his former client, will be ungrateful if he does not once more give Mr. Bennet employment. * * *

‘Word comes from Washington that it is possible to undo the work of Representative William S. Bennet, who inserted a joker in the sundry civil bill requiring the continuance of the privately operated commissary system on Ellis Island. * * *

‘Congressman Bennet, who has been the attorney for the food contractor at Ellis Island, and who jockeyed through a rider to an appropriation bill that forbids Commissioner Howe to end the practice of giving a contractor a monopoly right to make huge profits out of the food that arriving immigrants must buy from him, is smarting...