Lewis v. Chem. Found
| Decision Date | 23 May 1933 |
| Citation | 188 N.E. 33,262 N.Y. 489 |
| Parties | Merton E. LEWIS, Appellant, v. CHEMICAL FOUNDATION, Incorporated, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (238 App. Div. 762, 261 N. Y. S. 1032), entered January 12, 1933, affirming a judgment in favor of defendants entered upon a verdict in an action for libel. The plaintiff was appointed Special Assistant of the Attorney General of the United States to prosecute an action against the defendant Francis P. Garvan and others. The complaint in that action charged that the defendants conspired together to defraud the United States government in the sale of certain alien-owned property. The alleged libelous statements were made by Garvan in the course of his examination before trial in that action, and subsequently published in a newspaper, copies of which were sent by the defendants in this action to a large number of persons. The complaint herein alleged: ‘That in and by the statements so circulated and published by the defendants they intended to charge and did in fact charge, and were understood by the persons who read the statements to charge, that the plaintiff had committed a crime, namely, that he had violated the Penal Law of the United States by receiving a salary for or in connection with services rendered by him as an officer or employee of the Government of the United States, from sources other than the United States Government, and by reason thereof had made himself liable to a punishment of a fine * * * or imprisonment * * * or by both * * *.’ The trial court charged the jury that the statements complained of were libelous per se, and that the defendants had not established the truth of the accusations. The appellant limited his appeal to the Court of Appeals to the review of the correctness of the trial court's charge, to which he excepted, that the ‘communication was privileged because it contained a fair and accurate report of a judicial proceeding, and that the verdict must be for the defendants unless the plaintiff proved express malice on the part of the defendants in making the publication.’
Clarence W. McKay and Arthur E. Sutherland, both of Rochester, for appellant.
Joseph H. Choate, Jr., of New York City, and T. Carl Nixon, of Rochester, for respondents.
Judgment affirmed, with costs.
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