Briarcliff Lodge Hotel, Inc. v. Citizen-Sentinel Publishers, Inc.

• Citation: 183 N.E. 193,260 N.Y. 106
• Parties: BRIARCLIFF LODGE HOTEL, Inc., et al. v. CITIZEN-SENTINEL PUBLISHERS, Inc. SAME v. TARRYTOWN DAILY NEWS, Inc., et al. SAME v. WESTCHESTER NEWSPAPERS, Inc., et al. SAME v. YOUNKERS STATESMAN CORPORATION.
• Decision Date: 22 November 1932
• Court: New York Court of Appeals

260 N.Y. 106

183 N.E. 193

BRIARCLIFF LODGE HOTEL, Inc., et al.

v.CITIZEN-SENTINEL PUBLISHERS, Inc.

SAME

v.TARRYTOWN DAILY NEWS, Inc., et al.

SAME

v.WESTCHESTER NEWSPAPERS, Inc., et al.

SAME

v.YOUNKERS STATESMAN CORPORATION.

Court of Appeals of New York.

Nov. 22, 1932.

Actions by the Biriarcliff Lodge Hotel, Inc., and another against the Citizen-Sentinel Publishers, Inc., and another, against the Tarrytown Daily News, Inc., and another against the Westchester Newspapers, Inc., and another and against the Yonkers Statesman Corporation. From orders of the Appellate Division striking out the first, second, and third complete defenses in the answers (235 App. Div. 859, 860, 257 N. Y. S. 953, 954, 955), defendants appeal by leave of the Appellate Division, which certified questions to the Court of Appeals (236 App. Div. 703, 257 N. Y. S. 1062).

Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 20, 1932, which reversed an order of Special Term in so far as it denied a motion by plaintiffs to strike out defenses contained in the answers, in an action for libel, alleging that the article set forth in the complaint is true, that it was a fair and honest report and comment on a matter of public interest and that it was a fair and true report of public and official proceedings of the Municipal Board and the Board of Trustees of the village of Briarcliff Manor and was published without malice, and granted the motion.

In the first above-entitled action the following questions were certified:

‘1. Are the allegations contained in the first defense in the answer of the defendant Citizen-Sentinel Publishers, Inc., sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘2. Are the allegations contained in the second defense in the answer of the defendant Citizen-Sentinel Publishers, Inc., sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘3. Are the allegations contained in the third defense in the answer of the defendant Citizen-Sentinel Publishers, Inc., sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘4. Are the allegations contained in the first defense in the answer of the defendant J. Noel Macy sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘5. Are the allegations contained in the second defense in the answer of the defendant J. Noel Macy sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘6. Are the allegations contained in the third defense in the answer of the defendant J. Noel Macy sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?’

In the second above-entitled action the following questions were certified:

‘1. Are the allegations contained in the first defense in the answer of the defendant Tarrytown Daily News, Inc., to the first cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘2. Are the allegations contained in the second defense in the answer of the defendant Tarrytown Daily News, Inc., to the first cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘3. Are the allegations contained in the third defense in the answer of the defendant Tarrytown Daily News, Inc., to the first cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘4. Are the allegations contained in the first defense in the answer of the defendant Tarrytown Daily News, Inc., to the second cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘5. Are the allegations contained in the second defense in the answer of the defendant Tarrytown Daily News, Inc., to the second cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘6. Are the allegations contained in the third defense in the answer of the defendant Tarrytown Daily News, Inc., to the second cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘7. Are the allegations contained in the first defense in the answer of the defendant J. Noel Macy to the first cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘8. Are the allegations contained in the second defense in the answer of the defendant J. Noel Macy to the first cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘9. Are the allegations contained in the third defense in the answer of the defendant J. Noel Macy to the first cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘10. Are the allegations contained in the first defense in the answer of the defendant J. Noel Macy to the second cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘11. Are the allegations contained in the second defense in the answer of the defendant J. Noel Macy to the second cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?

‘12. Are the allegations contained in the third defense in the answer of the defendant J. Noel Macy to the second cause of action in the complaint sufficient in law to constitute a complete defense to such cause of action?’

In the third above-entitled action the following questions were certified:

‘1. Are the allegations contained in the first defense in the answer of the defendant Westchester Newspapers, Inc., sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘2. Are the allegations contained in the second defense in the answer of the defendant Westchester Newspaper, Inc., sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘3. Are the allegations contained in the third defense in the answer of the defendant Westchester Newspapers, Inc., sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘4. Are the allegations contained in the first defense in the answer of the defendant J. Noel Macy sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘5. Are the allegations contained in the second defense in the answer of the defendant J. Noel Macy sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘6. Are the allegations contained in the third defense in the answer of the defendant J. Noel Macy sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?’

In the fourth above-entitled action the following questions were certified:

‘1. Are the allegations contained in the first defense in the answer sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘2. Are the allegations contained in the second defense in the answer sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?

‘3. Are the allegations contained in the third defense in the answer sufficient in law to constitute a complete defense to the cause of action set forth in the complaint?’

Reversed, and questions certified answered in affirmative.

LEHMAN, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

Herbert C. Gerlach and Joseph Reeback, both of Ossining, for appellants.

Alexander U. Zinke, L. Zinke, and Charles W. Silver, all of New York City, for respondents.

CRANE, J.

As the first, second, and third defenses set up in the answers to thses libel actions have been stricken out, as insufficient at law, it is necessary for us to assume their allegations to be true, in considering whether or not they are the proper answers to the allegations in the complaint. The following, then, is the narration of facts according to which the defendants are to be adjudged in libel:

The plaintiff conducted in the village of Briarcliff Manor, Westchester county, a hotel known as Briarcliff Lodge. For more than a year prior to the publication alleged in the complaint it had purchased and used water that it needed for its guests from the municipal board of the village of Briarcliff Manor. This board operated the water supply system of the village and received and collected pay therefor. Bills for water consumed were sent in February, May, August, and November for user during the previous three months. Shortly after May 31, 1930, the municipal board sent to the plaintiff a bill for $2,134.67 for water consumed by it during the three months ending May 31st, and another bill, August 31, 1930, in the sum of $3,118.22, for the three months ending August 31, 1930, and on November 30, 1930, another bill for $2,268.03 for water used during the three months ending November 30, 1930. At the time of the alleged publication, there was due from the plaintiff the total sum of $7,520.92 for water used from March 1, 1930, to November 30, 1930, and the plaintiff still continued to purchase and use water up to the time of the publication. An ordinance of the village of Briarcliff Manor provided in part as follows: ‘If any charge for water supplied is allowed to remain unpaid for a period of six months from the date of said bill, then and in that event, the Superintendent is authorized to discontinue the use of water to said premises, within ten days after the mailing of notice to that effect to the water consumer of said premises.’

On January 10, 1931, the municipal board...