McNamara v. Goldan

• Court: New York Court of Appeals
• Writing for the Court: CULLEN
• Citation: 87 N.E. 440,194 N.Y. 315
• Parties: McNAMARA v. GOLDAN.
• Decision Date: 09 February 1909

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...