Bingham v. Gaynor

• Decision Date: 03 October 1911
• Parties: BINGHAM v. GAYNOR.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 27

96 N.E. 84

BINGHAM

v.GAYNOR.

Court of Appeals of New York.

Oct. 3, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Theodore A. Bingham against William J. Gaynor. An interlocutory judgment overruling a demurrer to an amended answer was reversed by the Appellate Division (141 App. Div. 301,126 N. Y. Supp. 353), and defendant appeals by permission on questions certified. Affirmed.

See, also, 129 N. Y. Supp. 1113.

The following questions were certified:

‘(1) Is that portion of the defendant's amended answer, contained in paragraph numbered 1 thereof, and designated as a ‘defense,’ insufficient in law upon the face thereof?

‘(2) Is that portion of defendant's amended answer designated as ‘a further defense to the alleged libelous statements, matters and things set out in paragraphs 13 and 16 of the complaint’ insufficient in law upon the face thereof.'Charles H. Hyde and Stephen C. Baldwin, for appellant.

E. C. Crowley, for respondent.

CHASE, J.

I concur in the result reached by the Appellate Division. I also concur in the opinion of that court as written by McLaughlin, J., except as it is qualified by what I shall say in this opinion.

[1] A person on an occasion that rebuts any presumption of express malice may publish statements, although defamatory of the person referred to in the communication, if he does so in the performance of a legal or moral duty and in good faith believing that such statements so made by him are true, without being liable for damages arising from such publication. The rule of law that permits such publications grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to comunicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person. Such privilege is known as a ‘qualified privilege.’ It is qualified because it does not extend beyond such statements as the writer makes in the performance of such duty and in good faith believing them to be true.

[2] A person having an interest as a citizen or otherwise in a public official may, in good faith, make a statement to the superior of the person about whom the communication refers. He is not liable by reason of an erroneous and untrue statement so made if it is found that it was made in good faith and in the performance of such duty. It was said in this court, in Byam v. Collins, 111 N. Y. 143, 150,19 N. E. 75 (2 L. R. A. 129, 7 Am. St. Rep. 726), quoting in part from Harrison v. Bush, 5 Ellis & Black. (Q. B.) 344: ‘The general rule is that in the case of a libelous publication the law implies malice and infers some damage. What are called privileged communications are exceptions to this rule. Such communications are divided into several classes, with one only of which we are concerned in this case, and that is generally formulated thus: ‘A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation.’'

In a communication so privileged it is not necessary, in defense of an action for an alleged libel by reason of such communication, to show that the statements contained therein are true, except, perhaps, as the truth of the allegations bear upon the question of express malice. The test in such a case, assuming that the party making the communication has an interest in the subject-matter and the party to whom the communication is delivered also has an interest as the superior of the person referred to therein, or particularly, as in this case, where the person to whom it was delivered had power to redress the wrong complained of, is whether the communication was made in good faith believing the statements are true and for the purpose of performing the legal or moral duty resting upon the person making the communication to make the same.

[3] As has already been said by the Appellate Division, the publication of the letter in the newspapers of the city in advance of its delivery to the mayor personally takes away and destroys the qualified privilege in the writer to send such communication to the mayor solely for the purpose of presenting facts to him that he might determine whether the plaintiff should be continued in office or removed therefrom. Woods v. Wiman, 122 N. Y. 445, 25 N. E. 919;Hunt v. Bennett, 19 N. Y. 173;Sunderlin v. Bradstreet, 46 N. Y. 188, 7 Am. Rep. 322.

[4] The qualified privilege that we have considered does not extend to communications to newspapers and to the public generally.

[5] There is, however, another well-established rule of law, also commonly called a qualified privilege, that protects a person in making any fair and honest criticism of the conduct of a public officer. This rule is quite independent of the one first stated, but it is also based upon the desirability of allowing such fair and honest criticism because it tends to the good of the public service. It is qualified because it does not extend beyond fair and honest comment and criticism. It is no protection to the writer if he therein makes false statements or unjustifiable inferences. In such a communicationthe writer makes statements of fact at his peril, and, if the statements made therein are libelous and untrue, the fact that they are made about a public officer does not exempt the writer on the ground of privilege. The...