Ginsburg v. Hearst Publishing Co.

• Decision Date: 18 February 1958
• Citation: 5 A.D.2d 200,170 N.Y.S.2d 691
• Parties: Paul GINSBURG, Plaintiff-Appellant, v. HEARST PUBLISHING COMPANY, Inc., and Hearst Consolidated Publications, Inc., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 691

170 N.Y.S.2d 691

5 A.D.2d 200

Paul GINSBURG, Plaintiff-Appellant, v. HEARST PUBLISHING COMPANY, Inc., and Hearst Consolidated Publications, Inc., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Feb. 18, 1958.

Leonard Feldman, New York City, for plaintiff-appellant.

Lawrence V. Brock, New York City, of counsel (Charles Henry and Joseph C. Hagan, New York City, on the brief; McCauley, Henry & Brennan, New York City, attys.) for defendants-respondents.

Before BOTEIN, P. J., and VALENTE, McNALLY and BERGAN, JJ.

VALENTE, Justice.

We are called upon to review the exercise of discretion of Special Term in declining jurisdiction of a cause of action for libel brought by a nonresident of the State against foreign corporations doing business in this State, where the complaint does not indicate that the tort was committed in New York.

The complaint alleges that plaintiff, an attorney licensed to practice in Pennsylvania and engaged in such practice in the City of Pittsburgh, was damaged in his reputation and profession by the publication of an alleged libel in the August 1, 1956 issue of the 'Pittsburgh Sun-Telegraph'. While no allegation is made as to the place or extent of the publication of the August 1, 1956 issue of the newspaper, the complaint does allege that one of the defendants publishes the paper in the City of Pittsburgh; that it is 'a daily newspaper published evenings and Sundays in the City of Pittsburgh, and widely circulated and read throughout the Commonwealth of Pennsylvania and in the United States generally'. The defendants are foreign corporations authorized to do business in New York, one being the subsidiary of the other.

There is no allegation of the publication of the alleged libel in New York. It has been held that the publication of a single issue of a newspaper--though many copies of the paper are distributed containing defamatory matter--gives rise to only one cause of action (Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 123-124, 81 N.E.2d 45, 47). It appears from the complaint herein that the cause of action arose in Pennsylvania.

Since the parties are nonresidents and the alleged libelous article was not published in New York, the Courts of this State can refuse to retain jurisdiction of the action. In de la Bouillerie v. de Vienne, 300 N.Y. 60, 62, 89 N.E.2d 15, 48 A.L.R.2d 798, the Court said:

'Our courts are bound to try an action for a foreign tort when either the plaintiff or the defendant is a resident of this State. Crashley v. Press Pub. Co., 179 N.Y. 27, 32, 71 N.E. 258, 259. It is only when an action is brought by one nonresident against another for a tort committed outside the State that our courts may refuse to take cognizance of the controversy. (Wedemann v. United States Trust Co., 258 N.Y. 315, 317, 179 N.E. 712, 713, 79 A.L.R. 1320; Murnan v. Wabash Ry. Co., 246 N.Y. 244, 247, 158 N.E. 508, 509, 54 A.L.R. 1522; Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N.Y. 152, 160, 139 N.E. 223, 226, 32 A.L.R. 1.)'

See also: Taylor v. Interstate Motor Freight System, 309 N.Y. 633, 132 N.E.2d 878; and 1 A.D.2d 933, 150 N.Y.S.2d 84, appeal dismissed 1 N.Y.2d 925, 154 N.Y.S.2d 986.

On the record here, Special Term's refusal to take cognizance of the action was a proper exercise of discretion. The criteria guiding courts in applying the doctrine of forum non conveniens are fully discussed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 and Koster v. (American) Lumbermens Mutual Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067. In the instant case, the complaint shows that the suit involves nonresidents for a cause of action that arose in Pennsylvania. Johnston v. MacFadden Newspapers Corporation, 238 App.Div. 68, 70, 263 N.Y.S. 561, 564, relied on by appellant is clearly distinguishable. There the amended complaint sought to be served alleged that the paper containing the defamatory matter was ...