Stella v. James J. Farley Assn.

• Decision Date: 06 May 1953
• Citation: 204 Misc. 998
• Parties: Frank J. Stella, Plaintiff,<BR>v.<BR>James J. Farley Association, Inc., et al., Defendants.<BR>Anne K. Toomey, Plaintiff,<BR>v.<BR>James J. Farley Association, Inc., et al., Defendants.
• Court: New York Supreme Court

204 Misc. 998

Frank J. Stella, Plaintiff,

v.James J. Farley Association, Inc., et al., Defendants.

Anne K. Toomey, Plaintiff,

v.James J. Farley Association, Inc., et al., Defendants.

May 6, 1953.

Richard E. Bauman for James J. Farley Association, Inc., and others, defendants.

William J. Ferris for Frank J. Stella, plaintiff.

Frank J. Stella for Anne K. Toomey, plaintiff.

MATTHEW M. LEVY, J.

Two plaintiffs, Frank J. Stella and Anne K. Toomey, have separately sued in libel. Their actions are grounded on the publication of the same article and are against the same defendants, James J. Farley Association, Inc., Lawrence P. Cuccia, J. & W. Newsprinters, Inc., Maurice Rodesk and James G. Donovan. Three of the defendants (Association, Cuccia and Donovan) move, on affidavits, to dismiss the complaints pursuant to subdivision 5 of rule 107 of the Rules of Civil Practice, upon the asserted ground that the actions are barred by the Statute of Limitations. Association and Cuccia were served with process on August 17, 1952; Donovan on August 18, 1952. The statute requires that the suits should have been instituted within one year after the cause of action arose (Civ. Prac. Act, § 51, subd. 3). A cause of action for libel arises when there is publication (Restatement, Torts [Defamation], § 577). The offending article was printed in a paper called the "Yorkville Democrat", published by the defendants and dated August 21, 1951.

Offhand, the issue thus presented by this motion would seem simple and easy of immediate solution. Plainly, on the basis of the calendar dates mentioned the actions must have been commenced within due time. But the law as of now is clear — the date of "publication" of an alleged libel is not determined by or even related to the printed date on the printed matter, and may well have been days or perhaps weeks before that date. I should have supposed — as an original proposition — that if one issues a libelous article and expressly dates it August 21, 1951, the person defamed by the article ought to be able to rely upon the printed date so fixed by the publisher himself as the date of publication. Certainly it may reasonably be assumed that circulation was intended and that it was had on that date. Indeed, in another action, based upon the same alleged libel instituted by the same plaintiffs against James J. Farley individually and one Arthur Simpson (both of them officials of the defendant Association) the answers (prepared by the defendant Donovan as their attorney) admitted that the publication of the paper in question took place on August 21, 1951. That would be my view, too, unless, of course, we are to say that actions for libel are to be discouraged by the courts. If that be our purpose, we can further shorten an unusually short Statute of Limitations (already reduced to one year) by requiring (as is now done in effect) that a defamed plaintiff sue practically immediately upon learning of the libelous article for fear that if he waits (in natural and reasonable reliance upon the printed date of issue given to the article by the defendant himself) the plaintiff may be deprived of his day in court — because the article had been "published" some time before August 21st, and the plaintiff did not know and could not readily ascertain on his own the exact date of that "publication".

One possible result of the present rule might be the granting of immunity to a shrewd and malevolent defamer who could expressly postdate his libelous article with the preconceived intention of misleading the defamed person as to the time of publication — unless forsooth a new cause of action were created to protect against such a situation. The claimed libelous material here appears to have been authored, printed and circulated between August 11 and 20, 1951; and the present rule completely and entirely concentrates in the defendants exclusive knowledge and control of all of the elements of proof as to the precise time when the cause of action accrued to the plaintiffs — and that accrual is not affected by any awareness on the plaintiffs' part. My proposed rule, it seems to me, is fair; and, being simple of application, would avoid the tortuous presentation and analysis — necessary upon a trial of this issue — of the various processes and stages in the production and distribution of printed material: whether participated in by author, stenographer, typist, editor, rewrite man, linotype operator, printer, deliveryman, postal clerk and postman — before reaching the ultimate recipient. More important, perhaps — since aggrieved persons would be able to rely upon the precise, fixed and publicly known date of publication — the adoption of my view would result, I think, in the not too hurried commencement of actions sounding in libel, for prospective plaintiffs could with security permit themselves for a definite while to be affected by the cooling-off periods so useful in assuaging mental anguish, moral anger and spiritual hurt — probably the basic motivating factors behind most lawsuits grounded in claims of defamation.

"In the law of defamation, publication is a term of art" (CARDOZO, C. J., in Ostrowe v. Lee, 256 N.Y. 36, 38) — but it does not follow that its meaning is static and immutable. Its common-law definition has already changed, and without benefit of legislative sanction. Historically, for example, each delivery of an article containing defamatory matter was considered a publication that gave rise to a separate cause of action (Duke of Brunswick v. Harmer [1849], 14 Q. B. 185; The King v. Carlisle, 1 Chit. [K. B. 1819] 451). However, recognizing that this rule of law was ill-suited to present times of mass printing and circulation, "publication" of newspapers, magazines and books has been redefined so as to include all the steps in the process of dissemination. Thus, the composition, printing and distribution of such libelous material are deemed to constitute only one cause of action (59 Harv. L. Rev. 136; 38 Mich. L. Rev. 552; 26 Minn. L. Rev. 131). (I shall refer to this "one publication rule" later). I hopefully express the thought that, in time, the meaning of "publication" will change in line with the thesis I have here presented. Currently, however, I must conclude that the law is otherwise, and that the printed date of issue is immaterial in fixing the date of "publication". (See, generally, the cases hereinafter cited in connection with the so-called "one publication rule".)

The problem here, therefore, is, when, under all the facts in this case, was there such "publication" by the moving defendants as to give rise to a cause of action against them, and thus be the basis of the commencement of the running of the Statute of Limitations? The present actions having been instituted as against the defendants Association and Cuccia on August 18, 1952, and as against the defendant Donovan on August 19, 1952, was such commencement timely under the facts? The litigants have presented and argued the issues as if all of the moving defendants must stand or fall together. I do not (as a calendar matter) so conceive the issue. I point out — for one thing — that, in computing the time of the running of the Statute of Limitations, the day of publication is excluded (General Construction Law, § 20; Tismer v. New York Edison Co., 228 N.Y. 156; Metropolitan Life Ins. Co. v. Schmidt, 299 N.Y. 428); and — for another — that if the date upon which these actions were required to be instituted fell on a Sunday, process could have been served on the following business day (General Construction Law, § 25-a; 1952 Report of N. Y. Law Revision Comm., N. Y. Legis. Doc. No. 65 [D]). The result is that, if publication by a defendant were on Friday, August 17, 1951, the year ends on Sunday, August 17, 1952, and the last day within which to institute the suits against him was therefore Monday, August 18th. As has been noted, two of the moving defendants (Association and Cuccia) were served with process on that day, and the remaining defendant (Donovan) on the following day. If the publication were on Saturday, August 18, 1951, the year ends on Monday, August 18, 1952, and the same result would follow — the suits were timely commenced as against Association and Cuccia, but too late with respect to Donovan. If publication were on or prior to Thursday, August 16, 1951, then each of the three moving defendants was tardily sued. If publication were subsequent to Saturday, August 18th, then all of the three defendants have been served within due time. The detailed facts as to the preparation, printing and distribution of this issue of the "Yorkville Democrat" are thus necessary to be outlined here in order to arrive at a proper disposition of the motion.

In the spring and summer of 1951, the plaintiff Stella was a candidate for Democratic district leader in the Eighth Assembly District North of New York County. The plaintiff Toomey was Stella's coworker and supporter. Stella's opponent was the incumbent, James J. Farley. The primary election was to be held in the afternoon and evening of August 21, 1951. A committee supporting Farley had been set up, and its active members consisted, among others, of the defendants Donovan and Cuccia, as well as officers, district captains, workers and members of the defendant association. As part of the Farley campaign, it had been decided to prepare, write, issue, pay for and distribute a four-page special edition of the so-called "Yorkville Democrat", to support the Farley cause. The Farley adherents decided to place the paper in the hands of every enrolled Democrat entitled to vote in the primary election by personal distribution throughout the district and by mailing a copy to each enrolled Democrat residing in the district.

The "Yorkville Democrat" was prepared and composed by the members of the campaign committee, including Donovan. The articles therein contained...