Ostrowe v. Lee

• Decision Date: 24 March 1931
• Citation: 256 N.Y. 36,175 N.E. 505
• Parties: OSTROWE v. LEE.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 36

175 N.E. 505

OSTROWE

v.LEE.

Court of Appeals of New York.

March 24, 1931.

Action by Anna F. Ostrowe against Richard L. Lee. From an order of the Appellate Division (230 App. Div. 461, 245 N. Y. S. 393), which affirmed an order of the Special Term (137 Misc. Rep. 457, 244 N. Y. S. 28) denying a motion made upon the pleadings for the dismissal of the complaint, defendant appeals, and the Appellate Division certifies the question: ‘Does the complaint herein state facts sufficient to constitute a cause of action?’

Order affirmed, and question answered.

LEHMAN, KELLOGG, and HUBBS, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Henry Waldman and Joseph G. Abramson, both of New York City, for appellant.

Alexander Pfeiffer and Jacob B. Goldberg, both of New York City, for respondent.

CARDOZO, C. J.

The complaint states, or attempts to state, two causes of action, one for libel and the other for slander. In the first, the plaintiff charges that the defendant composed a letter accusing the plaintiff of the crime of larceny; that he dictated this letter to his stenographer; that the stenographer, in obedience to his orders, read the notes and transcribed them; and that the letter so transcribed was received by the plaintiff through the mails. In the second cause of action, the plaintiff charges that a like defamatory charge was made over the telephone.

The defendant concedes upon this appeal that the second cause of action states the publication of a slander. The question is whether the first states the publication of a libel.

In the law of defamation, ‘publication’ is a term of art. Odgers, Libel & Slander, p. 131; Pollock, Torts (13th Ed.) p. 255. A defamatory writing is not published if it is read by no one but the one defamed. Published, it is, however, as soon as read by any one else. The reader may be a telegraph operator (Williamson v. Freer, L. R. 9 C. P. 393), or the compositor in a printing house (Baldwin v. Elphinston, 2 W. Bl. 1037), or the copyist who reproduces a longhand draft (Puterbaugh v. Gold Medal F. M. Co., 7 Ont. L. R. 582, 586). The legal consequence is not altered where the symbols reproduced or interpreted are the notes of a stenographer. Publication there still is as a result of the dictation, at least where the notes have been examined or transcribed. Pullman v. Walter Hill & Co. (1891) 1 Q. B. 524; Boxsius v. Goblet Freres (1894) 1 Q. B. 842; Gambrill v. Schooley, 93 Md. 48, 48 A. 730,52 L. R. A. 87, 86 Am. St. Rep. 414;Ferndon v. Dickens, 161 Ala. 181, 49 So. 888;Berry v. City of New York Ins. Co., 210 Ala. 369, 371, 98 So. 290;Nelson v. Whitten (D. C.) 272 F. 135; Puterbaugh v. Gold Medal F. M. Co., supra; Gatley, Libel & Slander, p. 91; cf. Kennedy v. James Butler, Inc., 245 N. Y. 204, 156 N. E. 666. Enough that a writing defamatory in content has been read and understood at the behest of the defamer. 1 Street, Foundations of Legal Liability, p. 297.

The argument is made that the wrong in such a case is slander and not libel. Salmond, Torts (7th Ed.) p. 530; Odgers, Libel & Slander, p. 135; Angelini v. Antico, 31 New Zealand Reports, 841; cf. Osborn v. Boulter & Son, L. R. (1931) 2 K. B. 226, at pages 231, 236, 237. ‘It is difficult to see how A can publish to B a document which is written by B himself.’ Salmond, supra. The criticism would be just if B were the author of the document, or wrote it of his own motion. The point is dulled when we remember that in noting and transcribing he does the didding of the defamer, who has used him as an instrument to give existence to the writing. Street, supra. p. 297. Very often a stenographer does not grasp the meaning of dictated words till the dictation is over and the symbols have been read. This is particularly likely to be the case where a defamatory charge is made equivocally or with evasive innuendoes. The author who directs his copyist to read, has displayed the writing to the reader as truly and effectively as if he had copied it himself.

To hold otherwise is to lose sight of history and origins. The schism in the law of defamation between the older wrong of slander and the newer one of libel is not the product of mere accident. Veeder, The History of the Law of Defamation, vol. 3, Essays in Anglo-American Legal History, 459, 461, 467, 468, 471; Fisher, The History of the Law of Libel, 10 L. Q. R. 158; 1 Street, Foundations of Legal Liability, pp. 291, 292; 8 Holdsworth, History of English Law, p. 365. It has its genesis in evils which the years have not erased. Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one abides and ‘perpetuates the scandal.’ Harman v. Delany, Fitzgibbon, 253, 254; Veeder, supra, p. 472; Street, supra, p. 294. When one speaks of a writing in this connection, one does not limit oneself to writings in manuscripts or books. Any symbol suffices-pictures, hieroglyphics, shorthand notes-if only what is written is intelligible to him who reads. Odgers, Libel & Slander, pp. 7, 21. There is publication of a libel if a stenographer reads the notes that have been taken by another. Neither the evil nor the result is different when the notes that he reads have been taken by himself. Street, supra, p. 297, n.

The soundness of a conclusion may not infrequently be tested by its consequences. Let us assume a case where words, unaccompanied by special damage, are libelous if written, but are not...