McNamara v. Goldan

• Decision Date: 09 February 1909
• Parties: McNAMARA v. GOLDAN.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 315

87 N.E. 440

McNAMARA

v.GOLDAN.

Court of Appeals of New York.

Feb. 9, 1909.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Daniel McNamara against S. Ormond Goldan. From a judgment of the Appellate Division (122 App. Div. 922,108 N. Y. Supp. 1139), affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Plaintiff alleges that the defendant, ‘contriving and wickedly and maliciously intending to injure the plaintiff in his good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace with and amongst all his neighbors and other good and worthy citizens, and to cause it to be suspected and believed by these neighbors and citizens that the said plaintiff had been, and was, guilty of the offenses and misconduct hereinafter mentioned to have been made and charged upon him by the said defendant, and to vex, harass, and oppress him, did falsely, wickedly, and maliciously compose and publish, and cause and procure to be published, of and concerning him, said plaintiff, the following false, malicious, and defamatory libelous letter: ‘New York, Sept. 12, 1905. The Rev. Father John Collins, Fordham, St. John's College, New York City-My Dear Sir: When with Mr. Macnamara I last saw you, you informed us that you would interview the young man as to the anonymous letters [the defendant thereby referring to, and writing of, certain obscene letters received by various persons through the mails, and well known to said Father Collins and others to have been so received] and that if there was any further complaint, he would be discharged from your institution. Since this time, this man has been sent for by the postal authorities, and voluntarily wrote for them, thereby disclosing the authorship of all the anonymously written letters [referring to said obscene letters]. At this time all letters [referring to said obscene letters] stopped for a time, only to begin again after the matter had in a sense quieted. These letters [referring to said obscene letters] are still being written, three having been received by different persons two weeks ago, and two yesterday. I have now evidence which proves conclusively that the man in your institution and no one else is actually writing these letters [referring to said obscene letters], though, no doubt others are inspiring some of the contents. While one of the assistant district attorneys stated that it was a moral certainty as to who wrote those letters [referring to said obscene letters], still there was not sufficient evidence to proceed against him criminally. This evidence is, however, sufficient I believe, for you to take some action upon, even if it involved this man's discharge, which possibly might result in stopping the vile practice. Please understand that both Mr. Macnamara and myself are absolutely dispassionate in the matter, the man is certainly an entire stranger to me and practically so to Mr. Macnamara, but, having shown himself as the author of these letters [referring to said obscene letters] I feel that you will agree with others and myself, that he should be punished. Trusting that with your kind help we may succeed in at least stopping this practice, I am, Most sincerely yours, J. Ormond Goldan.’ The only other allegation in the complaint, except the general allegation of damages, is as follows: ‘That the defendant by composing and publishing, and causing to be published, the above letter meant and charged that this plaintiff had been and was guilty of the crime of sending obscene letters through the mails.’ A demurrer to the complaint was interposed by the defendant upon the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action. An interlocutory judgment was entered at the Special Term overruling the demurrer, from which an appeal was taken to the Appellate Division. The Appellate Division reversed said interlocutory judgment and sustained the demurrer, and the defendant was given leave to amend his complaint within 20 days on payment of costs, but such order of reversal did not direct in regard to the entry of final judgment. An interlocutory judgment was entered upon such order. The plaintiff failed to amend his complaint, and upon motion a final judgment was entered at the Special Term, dismissing plaintiff's complaint on the merits. An appeal was taken from such final judgment to the Appellate Division, where it was unanimously affirmed. It is from such judgment of affirmance that the appeal is taken to this court.

Joseph N. Tuttle, for appellant.

Alfred Steckler and Levin L. Brown, for respondent.

CULLEN, C. J. (after stating the facts as above).

I think that the appeal in this case is properly before the court, though no leave to appeal has been granted. The action is one of the class in which, under subdivision 2, § 191, Code Civ. Proc., an appeal cannot be taken to this court from a unanimous decision by the Appellate Division. Technically there has been a unanimous affirmance of the judgment in this case, because under section 1336 of the Code of Civil Procedure, and the decision of this court in Leonard v. Barnum, 168 N. Y. 41, 60 N. E. 1062, where the Appellate Division reverses an interlocutory judgment, and an order at Special Term is subsequently entered thereon, the unsuccessful party must go through the formality of another appeal to the Appellate Division, though in case of an affirmance he can appeal directly to this court from the judgment of the Special Term. But though the judgment is literally within the terms of section 191, it is not within its spirit. It is only a judgment of affirmance by the Appellate Division that precludes an appeal to this court without leave. Here the determination of the Appellate Division which led to the subsequent entry of the judgment at Special Term was not of affirmance, but of reversal. The spirit and intention of the Code is that where both the court of first instance and the Appellate Division unanimously concur in the disposition of an action, an appeal shall not be taken as a matter of right. It is only in such a case that the right to appeal is limited. In the case before us the Special Term and the Appellate Division were not in accord, but the first court decided the action one way, and the Appellate Court the...