Cook v. Conners

• Court: New York Court of Appeals
• Writing for the Court: COLLIN
• Citation: 109 N.E. 78,215 N.Y. 175
• Parties: COOK, v. CONNERS.
• Decision Date: 25 May 1915

215 N.Y. 175

109 N.E. 78

COOK,

v.CONNERS.

Court of Appeals of New York.

May 25, 1915.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Margaret E. Cook against William J. Conners. From a judgment of the Appellate Division (157 App.Div. 832, 143 N.Y.Supp. 230) affirming a judgment for defendant and dismissing the complaint, plaintiff appeals by permission. Reversed, and new trial granted.

See, also, 211 N.Y. 605, 105 N.E. 1082; 158 App.Div. 955, 143 N.Y.Supp. 1111.

Herman J. Westwood, of Fredonia, for appellant.

Edward J. Araono, of Buffalo, for respondent.

COLLIN, J.

The action is to recover damages for an alleged libel. The facts present a single question for us to determine. The defendant owned and published at the city of Buffalo, in the same building, and speaking comprehensively, with the same plant and operators, except as to editorial staffs, two newspapers, the one, the Buffalo Enquirer, issued in the afternoon, and the other, the Buffalo Courier, issued in the morning of each day. The alleged libel was published in substance and effect, though not in identical language, in the Buffalo Enquirer on August 27, 1910, and in the Buffalo Courier the next morning. The plaintiff brought two actions against the defendant, that is, a separate action for each publication, and has recovered and been paid a judgment in the in the action based upon the publication in the Buffalo Enquirer. The present action was based upon the publication in the Buffalo Courier, and the trial court held that the judgment in the former action was a bar to a recovery by the plaintiff in this action and directed a verdict in favor of the defendant. The Appellate Division, by an unanimous decision, affirmed the judgment of the trial court and gave leave to the plaintiff to appeal to this court. The judgment must be reversed.

[1][2] The courts below held that the two actions involved the same issues and applied the principle that a judgment is final and conclusive upon the parties, not only as to the issues actually determined, but as to every other question which the parties might or ought to have litigated. Stokes v. Foote, 172 N.Y. 327, 344, 65 N.E. 176.

The principle, however, is applicable to those issues only which exist in or pertain to the cause or causes of action contained in the complaint and the defenses, answers, or counterclaims thereto. It does not require that all the causes of action wich a plaintiff may allege against a defendant, and which may be, must be set forth in a single complaint and litigated in one trial. A judgment is not a bar or estoppel in a subsequent litigation between the same parties of a cause of action which might have been pleaded and determined by it, but was not, although it may be a conclusive adjudication as to questions or facts which actually litigated and determined. Perry v. Dickerson, 85 N Y. 345, 39 Am.Rep. 663,Bell v. Merrifield, 109 N.Y. 202, 16 N.E. 55, 4 Am.St.Rep. 436; Dawley v. Brown, 79 N.Y. 390;Secor v. Sturgis, 16 N.Y. 548;Southern Pac. R.R. Co. v. United States, 168 U.S. 1, 48, 18 Sup.Ct. 18, 42 L.Ed. 355;Nesbit v. Riverside Independent District, 144 U.S. 610, 618, 12 Sup.Ct. 746, 36 L.Ed. 562. The respondent asserting and arguing that the two publications were a single act and a single injury invokes, in addition, the cognate rule that, where an action is brought for a part only of an entire demand, the verdict and judgment in such action are a conclusive bar to a subsequent action for another part of the same demand-a rule which applies only to such demands as are single, entire and indivisible. Kennedy v. City of New York, 196 N.Y. 19, 89 N.E. 360, 25 L.R.A. (N.S.) 847;O'Dougherty v. Remington Paper Co., 81 N.Y. 496;Secor v. Sturgis, 16 N.Y. 548.

The defendant communicated to others than the plaintiff the alleged libel on two independent occasions by means of two separate writings or newspapers. Persons would read or acquire knowledge of it from or through either paper who would not do so through the other. Each communication was a distinct publication which constituted, if the matter was libelous, a complete libel and a cause of action in favor or plaintiff. Underwood v. Smith, 93 Tenn. 687, 27 S.W. 1008, 42 Am.St.Rep. 946;Gordon v. Journal Publishing Co., 81 Vt. 237, 69 Atl. 742;Woods v. Pangburn, 75 N.Y. 495;Fisher v. New Yorker Staats-Zeitung, 114 App.Div. 824, 199 N.Y.Supp. 185;Central of Georgia Ry. Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687;Reid, Murdoch & Co. v. Ferris, 112 Mich. 693, 71 N.W. 484, 67 Am.St.Rep. 437;Hughes v. Rees, 4 M. & W. 204. The recovery by the plaintiff of the damages suffered by her through the publication in the Buffalo Enquirer does not compensate her for such damages, if any, as resulted from the publication in the Buffalo Courier. The evidence...