Cassidy v. Eagle

• Decision Date: 02 May 1893
• Citation: 33 N.E. 1038,138 N.Y. 239
• Parties: CASSIDY v. BROOKLYN DAILY EAGLE.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 239

33 N.E. 1038

CASSIDY

v.BROOKLYN DAILY EAGLE.

Court of Appeals of New York.

May 2, 1893.

Appeal from supreme court, general term, first department.

Action by Patrick S. Cassidy against the Brooklyn Daily Eagle for libel. From a judgment of the general term (18 N. Y. Supp. 930) affirming a judgment in plaintiff's favor, defendant appeals. Reversed.

Wm. N. Dykman, for appellant.

Edwin R. Leavitt, for respondent.

PECKHAM, J.

The plaintiff commenced this action to recover damages for the separate libels published of and concerning him by the defendant. The complaint contained a separate count for each libel. Upon the first and second counts the defendant had a verdict. Upon the third count the plaintiff obtained a verdict. The third count alleged that the defendant published the libel on the 6th day of July, 1887, and set it forth as follows: ‘Timely Talk. O'Donovan Rossa not in a Retracting Mood. O'Donovan Rossa: I have not denied that I have described Patrick Sarsfield Cassidyas being as big a rascal as ‘Red Jim’ McDermott. I did say such a thing, and I stand by it. I have reason to think that this Cassidy is as big a rascal as ‘Red Jim’ McDermott, and a bigger rascal.' Upon the trial the plaintiff was permitted to prove, under objection, certain articles published in the defendant's newspaper some years anterior to the article in question, in which the defendant animadverted in strong terms upon the character of McDermott. The objection was that the testimony was incompetent, immaterial, and irrelevant; that it had not been averred in the complaint as to what McDermott's character was, and there was no averment therein of any extrinsic fact making it proper to introduce such articles in evidence. The court admitted the evidence, because, as he said, the libelous article contained an allegation that plaintiff was a greater rascal than McDermott, and the natural force of the expression was that McDermott was a rascal, and that plaintiff was a greater rascal than McDermott, and the kind of rascal that McDermott was, the defendant disclosed in these articles; and the court held it was not such new matter that required to be pleaded.

The original article complained of by plaintiff was, without doubt, libelous. As the court remarked, the natural meaning of the language used was that McDermott was a rascal, and that plaintiff was a bigger rascal than McDermott. Plaintiff had made out his cause of action when he proved the publication of the article by defendant. The plaintiff desired to go further, and to prove what kind of a rascal McDermott was, in the estimation of defendant. This was, as it seems to us, an enlargement of the libel itself, and, in order to be admissible, should have been averred in the complaint. If the plaintiff did not choose to rest alone upon the libelous character of the article, as it was published, but wished to show what kind of a rascal the defendant charged McDermott was, it appears to us that the complaint should have contained such an averment, in order to let in the proof. It was not admissible upon the question of malice or damages without being pleaded. If the prior articles showed that the defendant had stigmatized McDermott as being a traitor, murderer, thief, or assassin, they did not, in and of themselves, have any bearing upon the plaintiff or his character. It was only when read in connection with the article counted upon as libelous that they would appear to have any connection with the plaintiff, and in such case...