Sorge v. Parade Publications, Inc.

• Decision Date: 27 February 1964
• Citation: 247 N.Y.S.2d 317,20 A.D.2d 338
• Parties: Santo SORGE, Plaintiff-Appellant, v. PARADE PUBLICATIONS, INC., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 317

247 N.Y.S.2d 317

20 A.D.2d 338

Santo SORGE, Plaintiff-Appellant, v. PARADE PUBLICATIONS, INC., Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 27, 1964.

James F. Murray, Jr., New York City, of counsel (Ernest P. Seelman, Brooklyn, and Michael J. Kenny, New York City, on the brief) for appellant.

Edward N. Costikyan, New York City, of counsel (William S. Wells, New York City, on the brief; Paul, Weiss, Rifkind, Wharton & Garrison, New York City, attorneys) for respondent.

Before RABIN, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.

STEVENS, Justice.

This action for libel is based upon an article which appeared in the January 21, 1962 edition of defendant's weekly publication entitled 'Parade'. This weekly is sold nationally to various newspapers and appears as an insert in their Sunday editions. In excess of eleven million copies were sold. Shipments of 'Parade' began on or about January 3, 1962, and were 98% completed on or before January 16, 1962. The present action was commenced by service of a summons upon the defendant on January 17, 1963.

Defendant moved to dismiss the complaint on the ground that the action was not timely brought within one year as provided in law, asserting the cause of action accrued upon delivery of 'Parade' to the common carrier January 3, 1962. It is from the order granting the motion, and a later judgment entered thereon, that plaintiff appeals.

On this appeal appellant asserts publication in New York occurred when 'Parade' was made available for sale to the general public, and that for civil libel to obtain, the libelous material must be read and understood by a third party. At any rate the appellant urges that since final shipment was on January 17, 1962, the action is timely for the last shipment controls.

Respondent's position is that publication occurred on January 3, 1962, when the allegedly libelous matter was delivered to a common carrier for delivery to the various consignees, and that as a matter of public policy the dismissal should be sustained.

The laws permitting suit for libel are designed to afford redress to an innocent or wronged victim. The law which erects a barrier by declaring a limitation of time during which such action must be instituted is designed to protect the alleged wrongdoer from having to face stale claims which it may be totally unprepared to meet (Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628). The so-called single publication rule safeguards the libelor from continuous harassment by a multiplicity of actions and minimizes some of the jurisdictional and legal problems which the person wronged might face in seeking redress. It is a modification of the 'common law rule that each communication of defamatory matter constitutes a separate publication.' Because of necessity 'and from a recognition that mass communication of a single defamatory communication, for practical purposes, constitutes a single wrong, the courts have developed a theory of a 'single publication' as one composite tort which embraces all the acts involved in the printing and distribution of a newspaper or magazine to its millions of readers in many jurisdictions. Under this rule there is but one publication and thus but one tort' (Harper & James, Law of Torts, § 5.16). See, Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45; Wolfson v. Syracuse Newspapers, Inc., 254 App.Div. 211, 4 N.Y.S.2d 640, aff'd 279 N.Y. 716, 18 N.E.2d 676. The gist or substance of the wrong of defamation, be it slander or libel, is the intentional or negligent communication by the author of the defamatory idea to some third person, not its principal subject. If unprivileged, liability may result. 'Printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person, provided that result actually follows' (emphasis supplied) (Youmans v. Smith, 153 N.Y. 214, 218, 47 N.E. 265, 266).

We must apply these general principles to the factual situation and the arguments of the respective parties, in an attempt to resolve the basic issue whether publication occurred upon delivery to a carrier, or upon such appearance as to constitute availability to the general reading public. A weekly of the character here involved is part of a commercial enterprise designed to be read, and is not a 'flower born to blush unseen and waste its sweetness on the desert air' of express car aridity. On simple analysis it would seem that delivery of bundles to a carrier, as was done here, would not constitute publication. But cases are not always resolved by simple analysis.

Attention is directed to the case of National Cancer Hospital of America v. Confidential, Inc., Sup., 151 N.Y.S.2d 443, which supports respondent's view that publication occurred at the time of the first shipment. Donato v. Kiendl, N.Y.L.J. July 27, 1948, p. 149, col. 1, Sup.Ct.N.Y.Co., aff'd 276 App.Div. 1077, 97 N.Y.S.2d 192, leave to appeal denied 301 N.Y. 814, 93 N.E.2d 661, might seem to aid respondent except that the Appellate Division observed '[i]n affirming we do not confine ourselves to the ground upon which Special Term rested.'

Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45, cited by both parties, is not dispositive of this issue. That case went up on a single certified question of law: 'Do sales from stock by a book publisher of copies of a book containing libelous material constitute republications of the libelous matter, so as to give rise to new causes of action within the meaning of Section 51, subdivision 3, of the Civil Practice Act [the one-year statute of limitations] where the copies sold are from an impression made and released for wholesale distribution more than one year prior to the dates of such sales?' (298 N.Y. p. 122, 81 N.E.2d p. 46) (emphasis supplied). The court, in answering in the negative, gave specific recognition to the single publication rule for it concluded that the release of thousands of copies, though at different times, 'affords the one libeled a legal basis for only one cause of action' (298 N.Y. p. 126, 81 N.E.2d p. 49). Moreover, the court continued, the complaint 'arises when the finished product is released by the publisher for sale in accord with trade practice' (298 N.Y. p. 126, 81 N.E.2d p. 49). This did not happen here. The publication was only delivered to the carrier in bundles. It was not released for sale as of the date of delivery to the carrier. The argument that the Gregoire case (Gregoire v. G. P. Putnam's Sons, supra) supports the view that a release for distribution by deposit with a common carrier constitutes publication must be rejected. The only question before the court involved the single publication rule. Publication, as the word itself indicates, involves the act of disseminating or communicating information to third persons. 'There can be no actionable libel unless the defamatory writing, through some act or the carelessness of the defendant, is read by or otherwise communicated to someone other than the person defamed who understood its meaning and knew to whom it referred' (Weidman v. Ketcham, 278 N.Y. 129, 131, 15 N.E.2d 426, 427; Am.Jur., Libel and Slander, § 90). '[T]he damages recoverable in libel are the plaintiff's loss of reputation in the minds of those who know him or know about him, together with this mental suffering as a result of the libel.' Mattox v. News Syndicate Co., Inc., 2 Cir., 176 F.2d 897, 901, 12 A.L.R.2d 988. Obviously the...