O'Connell v. Press Pub. Co.

• Decision Date: 23 March 1915
• Citation: 214 N.Y. 352,108 N.E. 556
• Parties: O'CONNELL v. PRESS PUB. CO.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 352

108 N.E. 556

O'CONNELL

v.PRESS PUB. CO.

Court of Appeals of New York.

March 23, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Christopher J. O'Connell against the Press Publishing Company. From a judgment of the Appellate Division affirming a judgment for plaintiff (155 App. Div. 918,140 N. Y. Supp. 1134), defendant appeals by permission. Reversed, and complaint dismissed.

Hogan, Cardozo, and Seabury, JJ., dissenting.

Howard Taylor, of New York City, for appellant.

Henry F. Cochrane, of Brooklyn, for respondent.

COLLIN, J.

The question before us is: Does the complaint state facts sufficient to constitute a cause of action? The action is for libel consisting of publications, concededly identical in substance and import, by the defendant in its newspapers, The World and The Evening World, of December 10, 1909. The publication in The World, excepting immaterial parts, was:

‘Fraud Indictment Near for Officer of Sugar Trust. Federal Grand Jury Has Evidence, Gained from Men Now on Trial, Implicating Him in Weighing Trickery. One Witness is Inventor of ‘Corset Steel’ Spring. Weigher Testifies that Spitzer Told Him to ‘See Bendernagel and Get an Envelope.’'

‘It developed yesterday that while Henry L. Stimson and some of his assistants have been introducing testimony against minor officials of the Sugar Trust on one floor of the Federal Building other assistant prosecutors have been evdeavoring to indict men ‘higher up’ before the federal grand jury on another floor of the building.

‘The World is in a position to state that evidence has been adduced before the federal grand jury which will result in the indictment of an official of the Sugar Trust for the very frauds, the perpetration of which now forms the basis of the criminal cases against minor officials, and that these indictments will be based, in part at least, on the evience of one or more of the men now on trial.

‘On Wednesday Judge Martin, of Vermont, who is trying the cases of Bendernagel, Spitzer and the four checkers, swore in the federal grand jury for December. One of the first witnesses examined was John H. Thompson, a clerk at 117 Wall street, the office of the Sugar Trust, who had appeared before the petty jury hearing the cases against Spitzer, Bendernagel, and others.

‘Instructed by Trust Official.

‘Thompson, it is understood, made known the official of the Sugar Trust upon whose acquiescence he paid the bills of the sugar shippers, which were based, not upon the government weights, but upon the weights returned by the city weighers. He declared distinctly that he acted under instructions, and by his testimony an offical of the trust is implicated in the frauds.

‘The December grand jury also examined a witness named O'Connell, who has not appeared in the criminal trial. It is said he testified to having invented the corset steel spring device and to having shown it to an official of the trust, who referred him to Oliver Spitzer, dock superintendent. His testimony, it is understood, corroborated Thompson's to an extent.

‘That action against some official higher up than Bendernagel was not taken by the previous grand jury is said to have been due almost entirely to the action of Breczinzski, the former treasury agent, who, with Richard Parr, was on the Sugar Trust piers when the raid was made on the crooked scales on Nov. 20, 1907. * * *

‘Told to ‘See Bendernagel.’

‘Prior to the argument the government had rested after several witnesses had testified. One was Thomas D. Hyatt, a weigher, who had taken charge of the district, including Havemeyer & Elder's refinery in October, 1897. He said:

‘Mr. Spitzer approached me and asked me to come up to the office and meet Mr. Bendernagel. I declined. I asked what they were going to charge as rent for the two offices which the weighers were to occupy. Spitzer said, ‘Oh, never mind that. We usually give that to the head weigher and a good deal more besides. You come to the office at the end of the month and Bendernagel will hand you an envelope. You need only shake hands with him; you don't even have to speak to him.’

“I declined again, and told him that I would rather wait a month or two until they could see how they liked my administration. Spitzer said: ‘We don't do any business with the assistant weighers; we do it all with the head weighers.’ * * *'

‘Another witness has Harvey E. Miller of the Fairbanks Scale Company, who testified that in his opinion the scales used on the sugar piers had been changed since they were bought. In examining them, he says he found bolt holes showing that the scales originally had a longer beam than they had when the spring was used.

‘The trial will be continued to-day.’

The respondent asserts that each publication charged the plaintiff with the commission of the crime and with aiding and assisting others in the commission of the crime of making or attempting to make an entry of imported merchandise by means of false or fraudulent practices or appliances or by means of false or fraudulent statements, as created by Act Cong. June 10, 1890, c. 407, § 9, 26 Stat. 135, which provides:

‘That if any owner, importer, consignee, agent, or other person shall make or attempt to make any entry of imported merchandise by means of any fraudulent or false invoice, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever, or shall be guilty of any willful act or omission by means whereof the United States shall be deprived of the lawful duties, or any portion thereof, accruing upon the merchandise, or any portion thereof, embraced or referred to in such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, * * * such person shall, upon conviction, be fined for each offense a sum not exceeding five thousand dollars, or be imprisoned for a time not exceeding two years, or both, in the discretion of the court .’

In connection therewith, the...