People ex rel. Bensky v. Warden of City Prison

• Decision Date: 05 January 1932
• Citation: 179 N.E. 257,258 N.Y. 55
• Parties: PEOPLE ex rel. BENSKY v. WARDEN OF CITY PRISON et al.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 55

179 N.E. 257

PEOPLE ex rel. BENSKY

v.WARDEN OF CITY PRISON et al.

Court of Appeals of New York.

Jan. 5, 1932.

Habeas corpus by the People, on the relation of Nathan J. Bensky, against the Warden of the City Prison and others. From an order of the Appellate Division (233 App. Div. 830, 250 N. Y. S. 976), which affirmed an order of the Special Term dismissing a writ of habeas corpus, relator appeals.

Reversed, and relator discharged.

Appeal from Supreme Court, Appellate Division, First department.

William A. Blank and William Gitelman, both of Brooklyn, for appellant.

Charles B. McLaughlin, Dist. Atty., of New York City (Sol Boneparth, of New York City, of counsel), for respondents.

HUBBS, J.

Park View Towers, Inc., filed plans in the office of the tenement house department of the borough of Bronx, in the city of New York, for the erection of a six-story, nonfireproof tenement house. The building described in the plans was erected and the owner filed an application for a certificate of occupancy as required by law. The certificate of occupancy was issued and the owner rented the building to tenants who occupied it. The appellant, feeling aggrieved, filed a petition in the Supreme Court for a peremptory mandamus directing William J. Deegan, tenement house commissioner, to revoke the certificate of occupancy. The petition alleged that the certificate was issued in violation of law. It set forth that the petition of the owner for a certificate of occupancy disclosed that the building did not comply with the Tenement House Law (Consol. Laws, c. 61) and that the owner was not entitled to a certificate of occupancy because the building was constructed in violation of law in the particulars enumerated in the petition. It also alleged: ‘That by means of a corrupt, illegal and improper agreement by and between the defendant owner of said building * * *’ and ‘William J. Deegan, Tenement House Commissioner, his deputies and subordinates, the defendant (owner) was permitted to habitate and was granted a certificate of occupancy for the said building, all in violation of law.'

The defendant tenement house commissioner moved under the Rules of Civil Practice, rule 103, to strike out of the petition the words ‘corrupt, illegal and improper agreement.’ The motion was granted on the ground that the words were scandalous, irrelevant, redundant, unnecessary, and impertinent. A motion was then made to dismiss the petition which was also granted. Both orders were reversed by the Appellate Division (Matter of Bensky v. Deegan, 232 App. Div. 86, 249 N. Y. S. 169), and an alternative order of mandamus was granted. Before the decision in the Appellate Division, Commissioner Deegan filed a complaint in the City Magistrates' Court, charging the appellant with criminal libel, in violation of section [258 N.Y. 58]1340 of the Penal Law (Consol. Laws, c. 40). The complaint alleges that the words ‘by means of a corrupt, illegal and improper agreement,’ contained in the petition in the mandamus action, were false and libelous; that they were published willfully and feloniously, with intent to injure the complainant in his business and occupation. After a hearing the city magistrate committed the defendant and he was taken into custody by the sheriff. He then instituted this proceeding for a writ of habeas corpus. The proceeding was dismissed at the Special Term, and the dismissal was affirmed by the Appellate Division.

It is urged by the appellant that the allegations contained in the petition in the mandamus action were privileged communications, and, therefore, that he has not been guilty of the crime of publishing a libel.

The publication of a libel in violation of section 1340 of the Penal Law is deemed to be malicious ‘if no justification or excuse therefor is shown.’ Section 1342. It is justified ‘when the matter charged as libelous is true, and was published with good motives and for justifiable ends.’ It is excused when it is honestly made, in the belief of its truth and upon reasonable grounds for such belief, and consists of fair comments upon the conduct of a person in respect to public affairs. Penal Law, § 1342.

In addition to the defenses of justification and excuse to a prosecution for libel, there is a third defense, i. e., that the publication was privileged. Penal Law, § 1350.

In England counsel engaged in an action or proceeding before a court of competent jurisdiction and the parties to such litigation possess an absolute privilege from liability to an action for libel or slander based upon anything they may say or publish in the course of such litigation. It makes no difference whether the language used was material or relevant. It is deemed to be against public policy to permit a cause of action to be based upon it. If it relates to the cause before the court it is absolutely privileged. In Munster v. Lamb, 11 Q. B. D. 588, 605 the court assumed that the words used were defamatory, used maliciously, without justification, and were irrelevant. Nevertheless, Brett, M. R., said: ‘With regard to counsel, the questions of malice, bona fides, and relevancy, cannot be raised; the only question is, whether what is complained of has been said in the course of the administration of the law. * * * No action of any kind, no criminal prosecution, can be maintained against a defendant, when it is established that the words complained of were uttered by him as counsel in the course of a judicial inquiry, that is, an inquiry before any court of justice into any matter concerning the administration of the law.'

All statements contained in documents and pleadings necessary to such a court proceeding are absolutely privileged upon the ground of...