Duffy v. Kipers

• Decision Date: 30 June 1966
• Citation: 271 N.Y.S.2d 338,26 A.D.2d 127
• Parties: Estelle C. DUFFY, Respondent, v. Frank F. KIPERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 338

271 N.Y.S.2d 338

26 A.D.2d 127

Estelle C. DUFFY, Respondent, v. Frank F. KIPERS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Argued April 6, 1966.

Decided June 30, 1966.

Donald E. Robinson, Rochester, for appellant (Edmund Clynes, Rochester, of counsel).

Bernstein & Bernstein, Rochester, for respondent (Seymour Bernstein, Rochester, of counsel).

Before BASTOW, J.P., and GOLDMAN, HENRY, DEL VECCHIO, and MARSH, JJ.

OPINION

PER CURIAM.

Plaintiff-respondent, an appointed Deputy Town Clerk of the Town of Gates, Monroe County, recovered judgment against defendant-appellant, the Town Supervisor, for alleged libel and slander against her growing out of shortages of tax moneys. Appellant urges that there was no proof of malice and that he had an absolute privilege, by reason of his public office, to make the statements he uttered concerning the shortages. With this position we agree.

When the shortage of funds was discovered appellant, as was his duty, investigated the situation to determine responsibility for the loss. It is undisputed that part of respondent's duties was the handling of funds paid by residents in taxes and fees, although other employees also had access to the money and books. A reputable attorney, not a resident of the Town, who was too ill to testify and died shortly after the trial, was hired to investigate the situation. As a result of his investigation he advised the Town Clerk to discharge respondent. The Town Board, of which the appellant was a member by reason of being Supervisor, voted to dismiss respondent by a three to two vote, one of the dissenters being appellant. Respondent was immediately rehired in a lesser capacity, as a clerk, with a cut in pay.

Accepting respondent's version of what took place, she was summoned to a conference of some of the Town officials and in her words the following happened: the Town Clerk told her 'You're being dismissed--and I was stunned when he said there was a shortage of $300.--Then I looked at Mr. Kipers (appellant)--and he says, 'There is $300-and-some-odd dollars missing and you are going to have to make restitution'--so I looked at Mr. Kipers--and I said, 'Well, Mr. Kipers, are you calling me a thief.' He said, 'Well, yes, in that sense. " It was later discovered that the shortage was about $4,600. There also appeared in a Town newspaper a statement by appellant that funds were missing, that bonding covered the losses, and that investigations were being made. There was no reference in that news account to the respondent or to the dismissal of any employee. This paragraph contains the most favorable proof in support of respondent's case.

Appellant's trial attorney (not counsel on this appeal) did not allege in the amended answer in specific language the defense of absolute privilege, nor did he request a charge to that effect. The answer did, however, assert as distinct defenses that 'Under the above circumstances the comments claimed to have been uttered by defendant would be justified.' and that they were 'fair comment made in good faith, without malice upon the said facts that were matters of public interest and concern'. The Trial Justice charged the doctrine of qualified privilege, but made no reference to absolute privilege. Neither party took any exception nor made any request to charge. Appellant's attorney made various motions to set aside the jury's verdict and for the first time asserted the principle of absolute privilege and called the court's attention to the decision in Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359. All of appellant's motions were denied on the ground that they were not timely made.

The only question which must be determined on this appeal is whether appellant should prevail on the defense of absolute privilege. 'A privilege publication is one made upon an occasion which, Really or apparently, furnishes a legal excuse for making it. In the words 'really or apparently' lies the distinction between publications which are absolutely and those which are only qualifiedly privileged. In the case of absolute privilege, the occasion is a complete or absolute excuse.' (Yankwich, Essays in the Law of Libel, p. 144). Or as Professor Prosser put it: 'privilege and truth--are complete defenses, avoiding all liability when they are established.' (Prosser, Torts, (3d ed.), § 109, p. 795). The defense of qualified privilege must be pleaded and proved, while that of absolute privilege may be discerned from the facts alleged in the complaint itself (Corwin v. Berkwitz, 190 App.Div. 952, 179 N.Y.S. 915; see, also, Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505; Teichner v. Bellan, 7 A.D.2d 247, 252, 181 N.Y.S.2d 842, 847; Annot., 51 A.L.R.2d 552). Here the defense is pleaded in the amended answer several times although the word 'absolute' is not used. Furthermore, the defense of absolute privilege was urged on appellant's motions after the rendering of the verdict (see, 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4404.05).

The decision as to whether, under the circumstances, a privilege exists is for the court and not the jury (Cheatum v. Wehle, 5 N.Y.2d 585, 594, 186 N.Y.S.2d 606, 612, 159 N.E.2d 166, 171; 3 Restatement, Torts § 619). The absolute privilege of a governmental officer exists where he acts in connection with his official duties. The trial court properly charged that appellant was acting in his official capacity (see, Sheridan v. Crisona, 14 N.Y.2d 108, 112--113, 249 N.Y.S.2d 161, 163--165, 198 N.E.2d 359, 360--361; Cheatum v. Wehle, supra). The question of absolute privilege being a matter for the court the failure to except to the charge for not including it did not prevent the court from granting appellant's motion made after the verdict.

The privilege to criticize a public official and his corresponding privilege to respond with or initiate 'defamatory statements made in the...