Toomey v. Farley

• Decision Date: 19 October 1956
• Citation: 2 N.Y.2d 71,156 N.Y.S.2d 840,138 N.E.2d 221
• Parties: , 138 N.E.2d 221 Anne K. TOOMEY et al., Respondents-Appellants, v. James J. FARLEY et al., Appellants-Respondents, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 840

156 N.Y.S.2d 840

2 N.Y.2d 71, 138 N.E.2d 221

Anne K. TOOMEY et al., Respondents-Appellants, v. James J. FARLEY et al., Appellants-Respondents, et al., Defendants.

Court of Appeals of New York.

Oct. 19, 1956.

Milton Pollack, New York City, for James J. Farley and others, appellants-respondents.

Ralph m. Carson, S. Hazard Gillespie, Jr., Richard E. Bauman and Henry L. King, New York City, for James G. Donovan, appellant-respondent.

Leonard Feldman, Frank J. Stella, William Ferris and Jerry Davidoff, New York City, for Frank J. Stella and another, respondents-appellants.

CONWAY, Chief Judge.

This is a libel action based on alleged defamatory statements contained in the 'Yorkville Democrat', a political campaign document in the form and style of a tabloid newspaper, which was distributed in connection with a primary campaign for the Democratic leadership of the 8th Assembly District North, New York County.

The plaintiff Frank J. Stella was the opponent in that campaign of the incumbent, defendant James J. Farley, executive member of the defendant James J. Farley Association, Inc. Plaintiff Toomey was one of the workers or captains in behalf of plaintiff Stella. The defendant Lawrence P. Cuccia is a member of defendant Farley Association. It is alleged that the defendants are the editors, proprietors and publishers of the 'Yorkville Democrat.'

Plaintiffs Toomey and Stella had commenced their political activity in 1935 as supporters of the then leader of that area, one Ed Loughlin. The so-called Loughlin Flood organization had supported Vito Marcantonio for Congress from that area for a number of years. In 1949 defendant Farley won the district leadership in a primary fight 'against the regular organization'. This led to the nomination in 1950 by both the Democratic and Republican parties of defendant Donovan as candidate for Congress, and that same year he ended the congressional career of the late Vito Marcantonio by defeating him in that electon. It is alleged that in mid-August, 1951, with the primary election coming up on Tuesday, August 21, the defendants Farley, Cuccia and Donovan, as well as many others interested in maintaining the Farley leadership, caused to be published a newspaper called the 'Yorkville Democrat.'

The complaint charges in substance that in that newspaper plaintiffs were accused of communist affiliations. Thus the complaints of both Toomey and Stella allege that:

'Fourth: That by the words so quoted as above, which were printed, published and widely circulated by the defendants as aforesaid, defendants meant and intended to mean that plaintiff was a member of the Communist Party and further that she ('he' in the Stella Complaint) owed her ('his' in the Stella complaint) allegiance to the Union of the Soviet Republic and not the United States of America or the city or community in which she ('he' in the Stella complaint) lived, and that said words were so understood by the readers of defendants' said newspaper.' The reference to 'the words so quoted' in the fourth paragraph of the complaint relate to the alleged libelous articles which stated among other things:

1. 'He (Stella) and his workers are all pals of Vito Marcantonio, notorious champion of communists and seditionists.'

2. 'Stella is Marcantonio's man.'

3. 'Marcantonio's defeat is one of Stella's principal complaints.'

4. 'When Marcantonio became red-hot Stella resigned or had to resign (as Assistant U. S. Attorney).'

5. 'Under his pal Marcantonio's tutelage he (Stella) is trying to hammer his way back in.'

6. 'In another column of this paper we print the names and addresses of several henchmen of Marcantonio who comprise Stella's crew of fellow-travelers.'

7. 'We have heard Stella's left-wing pal griping about jobs.'

8. 'Naturally that's all they can see in politics because with jobs left-wingers have cozy places for burrowing from within.'

9. 'Spike the Commies.'

10. 'Reject Emphatically the Stellas the Fellow-Travelers.'

11. 'Keep the Doors Closed on the Reds and the Marcantonios.'

12. 'Marcantonio Cohorts Dominate Campaign Opposition to Farley.'

13. 'Supporters of Stella Unmasked as Reds.'

14. 'So that the Democrats of this district will know them, we list them by name, giving their addresses:

Frank J. Stella * * *

Anne K. Toomey, 230 East 72nd Street, for years a diligent canvasser and circulator of petitions for Marcantonio.'

The jury returned a verdict awarding to plaintiff Stella $10,000 compensatory damages and $7,500 punitive damages and awarding plaintiff Toomey six cents compensatory damages and $7,500 punitive damages. On appeal, the Appellate Division reversed and ordered a new trial unless the plaintiffs consented to a reduction of their verdicts to $5,000 punitive damages for Toomey and to $5,000 compensatory and $5,000 punitive damages for Stella. Both plaintiffs elected to take the reduction, and filed the necessary stipulations and consents, upon which the Appellate Division ordered that the judgment appealed from be modified and as so modified affirmed.

Defendants appeal to this court from that part of the final judgment of modification as awards plaintiff damages against them. The plaintiffs cross-appeal from the judgment of modification to the extent that it reduces the amount of their recovery against defendants.

It is the defendants' contention that: (1) The publications complained of were not libelous, but were fair comment concerning political facts admittedly true; (2) the alleged cause of action as against Donovan is barred by the Statute of Limitations, and the trial court erred in failing to dismiss as a matter of law upon the facts conclusively established at the trial; (3) defendant Farley was not represented by counsel when the jury was impaneled and was improperly deprived of the right to participate in the selection of the jury; (4) defendants were irreparably prejudiced by the admission into evidence of a substantial amount of recurring testimony concerning the religious faith and observances of the plaintiffs and of one of their principal witnesses and that the trial court aggravated the damage by his remarks concerning this prejudicially irrelevant testimony; (5) the award of punitive damages in favor of plaintiff Toomey is insupportable inasmuch as by its award of nominal compensatory damages the jury found that plaintiff Toomey suffered no actual damage and (6), the plaintiff Stella also failed to meet the necessary standard of proof in relation to actual injury, financial or otherwise.

We all agree that to charge one with being a Communist or with having communist affiliations and sympathies is defamatory, justifying an action for libel, see Mencher v. Chesley, 297 N.Y. 94, 75 N.E.2d 257, and we all further agree, on the basis of the evidence, that the jury could properly conclude, as it did, that the statements made by defendants of plaintiffs were libelous. The defense of fair comment is not available to one who makes false statements or unjustifiable inferences. The qualified privilege that protects a person in making any fair and honest criticism of the conduct of a public officer or one seeking public office 'extends to a fair and honest statement of actual facts relating to public acts and to reasonable and justifiable comment thereon and criticism thereof. It does not extend to attacks upon private character or to publishing defamatory things about an official even if the writer in good faith makes the publication believing his statements are true, neither does it permit a person to draw conclusions that are, or that the jury may find are, improper and unjustifiable.' Bingham v. Gaynor, 203 N.Y. 27, 32-33, 96 N.E. 84, 85.

Moreover, we are in agreement in the following respects: (a) The plaintiffs' cause of action against defendant James G. Donovan is barred by the one-year libel Statute of Limitations, Civil Practice Act, § 51, subd. 3, and must, therefore, be dismissed. The first copies of the Yorkville Democrat' containing the alleged defamatory statements were distributed on August 17, 1951. Suit was commenced as against him on August 19, 1952, more than one year thereafter, and, under the rule in Gregoire v. G. P. Putnam's Sons, Books, Inc., 298 N.Y. 119, 81 N.E.2d 45 which we hold to be applicable here the time for commencing suit began to run as of August 17th. (b) Plaintiffs' cross appeal from the judgment of modification, to the extent that it reduced the amount of plaintiffs' recovery, must be dismissed since plaintiffs consented to such reduction, see Dudley v. Perkins, 235 N.Y. 448, 139 N.E. 570.

The remaining question is as to whether defendants, James J. Farley, James J. Farley Association, Inc., and Lawrence P. Cuccia should be granted new trials upon the grounds: (1) That Farley was not represented by counsel when the jury was impaneled; (2) that the foregoing-named defendants were prejudiced by the admission into evidence of testimony concerning the religious faith and observances of the plaintiffs and of one of their principal witnesses and that the trial court aggravated the damage by his remarks concerning such testimony, and (3) that the damages awarded plaintiffs, even as reduced by the Appellate Division, are excessive and unauthorized in law.

We conclude that new trials are not warranted.

As to (1): Defendant Farley was represented at the trial of this action by his codefendant, Donovan. Mr. Donovan, as a defendant, was represented at the trial by Richard E. Bauman, who was Mr. Donovan's secretary and office associate. When the case appeared on the Ready Day Calendar at Trial Term, Part II, of the Supreme Court, New York County, on January 17, 1955, at about 10:30 in the morning, Mr. Justice McNally, who was presiding, queried counsel as to whether they were actually ready and Mr. Bauman answered that they were. Mr. Justice McNally then assigned the case to Trial Term, Part XIV. On appearing at Trial...