Youmans v. Smith

CourtNew York Court of Appeals
Writing for the CourtVANN
Citation47 N.E. 265,153 N.Y. 214
PartiesYOUMANS v. SMITH et al.
Decision Date08 June 1897

153 N.Y. 214
47 N.E. 265

YOUMANS
v.
SMITH et al.

Court of Appeals of New York.

June 8, 1897.


Appeal from supreme court, general term, Fourth department.

Action by William Youmans against Sherrill E. Smith and others. On the death of plaintiff, George W. Youmans, administrator, was substituted.

This action was commenced in May, 1890, by William Youmans, a practicing attorney, residing in the village of Delhi, against the defendants, who published a newspaper and carried on a printing business at the same place, to recover damages for the publication of certain printed matter alleged to be a libel upon the plaintiff. The defendants, by their answer, admitted that they printed the matter in question, but denied that they published it, and alleged that whatever they did was privileged. On the trial it appeared that in November, 1888, one Richard Whigham had presented a petition to the general term of the supreme court, alleging that the said William Youmans had ‘for a long time been guilty of disreputable and unprofessional conduct, and corrupt and venal acts and practices,’ and asking that he be deprived of his right to practice law. Thirty-five specifications of assault and battery, perjury, defamation, malicious prosecution, dishonesty, oppression of clients and others, and the use of vile epithets towards neighbors, etc., were set forth, and supported by the affidavits of 18 witnesses. Mr. Youmans filed a denial, supported by the affidavits of 54 witnesses, and the court sent the matter to a referee, to take the proofs, and report the same at a later term. In preparing for the hearing before the referee, Calvin H. Bell, the attorney for the petitioner, prepared a list of ‘questions to be asked’ during the investigation, and taking it to the printing office of the defendants, in their absence, and without their knowledge, employed the foreman in charge to print 50 copies of the same, stating that ‘he wanted them printed for the purpose of handing a copy to each witness, to be used in the disbarment suit.’ The copies were printed accordingly, and delivered to Mr. Bell, who paid for them, and neither of the defendants knew anything about the matter until afterwards. The questions, which were not published either in the newspaper or otherwise than as herein stated, were as follows: ‘Questions to be asked: From the speech of people, what is Mr. Youmans' general character in the community in which he lives? Good or bad? What is his general character for truth and veracity? Good or bad? What is his general character in respect to bearing false witness? Good or bad? What is his general character in respect to insulting, traducing, and villifying people? Good or bad? What is his general character in respect to the promotion of virtuous actions, good principles, and good conduct? Good or bad? What is his general character in respect to licentious, obscene, and vulgar conversation? Good or bad? What is his general character in respect to his attacking and doing bodily harm to people? Good or bad? Whilst you have known him, what has his influence as a lawyer been on the people where he resides? Good or bad?’ Mr. Bell mailed a copy of the questions to various persons who were subpoenaed by him as witnesses in said proceeding, but, so far as appears, made no other use thereof. No evidence was given tending to show express malice on the part of the defendants or either of them. At the close of the evidence, the counsel for the defendants asked the court to direct a verdict in their favor, upon the ground that their action through their foreman was privileged; that they never published nor circulated any of the papers; and that the delivery of the copies to Mr. Bell, the attorney in the disbarment proceedings, for use therein, was a privileged delivery. The motion was denied, exception was taken, and the case submitted to the jury, who found a verdict in favor of the plaintiff for the sum of $1,000. Upon appeal to the general term (25 N. Y. Supp. 1130), that court affirmed the judgment rendered at the circuit, and the defendants now come here. Reversed.


[153 N.Y. 217]Edwin Countryman and W. H. Johnson, for appellants.

Geo. W. Youmans and Charles L. Andrus, for respondent.


[153 N.Y. 218]VANN, J. (after stating the facts).

The appellants do not deny that the jury could lawfully find the words in question to be libelous, but they contend that they were not published, within the meaning of the law relating to the subject, and that, even if published, they were privileged. An action to recover damages for libel cannot be maintained upon proof simply that the libelous words were composed, and were in existence as written or printed matter, without being known to any one except the author and the...

To continue reading

Request your trial
168 practice notes
  • O'BRIEN v. Alexander, No. 94 Civ. 5400 (DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 29, 1995
    ...made in pleadings and in court, but also to statements made: in a letter from an attorney to subpoenaed witnesses, Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265 (1897); in letters between attorneys and parties or communications by attorneys to the court, Simon v. Potts, 33 Misc.2d 183, 225 N.......
  • Hawkins v. Harris
    • United States
    • United States State Supreme Court (New Jersey)
    • July 27, 1995
    ...(emphasis added). The privilege protects an attorney's agents and employees in what they do at the attorney's request. Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265, 267 (1897). Thus, in Middlesex Concrete Products, supra, 68 N.J.Super. at 92, 172 A.2d 22, the court found that the litigation ......
  • Michelo v. Nat'l Collegiate Student Loan Trust 2007-2, 18 Civ. 1781 (PGG), 18 Civ. 7692 (PGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 11, 2019
    ...As the New York Court of Appeals has explained,[c]ommencing with th[e] Court's 1897 decision in Youmans v. Smith, 153 N[.]Y[.] 214, 47 N.E. 265 (1897), we have held that absolute immunity from liability for defamation exists for ... statements made by attorneys in connection with a proceedi......
  • Bar Grp., LLC v. Bus. Intelligence Advisors, Inc., CIVIL ACTION H–16–0428
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 22, 2017
    ...in Front v. Khali , 24 N.Y.3d 713, 718, 28 N.E.3d 15, 18 (2015), opined,Commencing with this Court's 1897 decision in Youmans v.Smith , 153 N.Y. 214, 47 N.E. 265 (1897), we have held that absolute immunity from liability for defamation 215 F.Supp.3d 548exists for oral or written statements ......
  • Request a trial to view additional results
167 cases
  • O'BRIEN v. Alexander, No. 94 Civ. 5400 (DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 29, 1995
    ...made in pleadings and in court, but also to statements made: in a letter from an attorney to subpoenaed witnesses, Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265 (1897); in letters between attorneys and parties or communications by attorneys to the court, Simon v. Potts, 33 Misc.2d 183, 225 N.......
  • Hawkins v. Harris
    • United States
    • United States State Supreme Court (New Jersey)
    • July 27, 1995
    ...(emphasis added). The privilege protects an attorney's agents and employees in what they do at the attorney's request. Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265, 267 (1897). Thus, in Middlesex Concrete Products, supra, 68 N.J.Super. at 92, 172 A.2d 22, the court found that the litigation ......
  • Michelo v. Nat'l Collegiate Student Loan Trust 2007-2, 18 Civ. 1781 (PGG), 18 Civ. 7692 (PGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 11, 2019
    ...As the New York Court of Appeals has explained,[c]ommencing with th[e] Court's 1897 decision in Youmans v. Smith, 153 N[.]Y[.] 214, 47 N.E. 265 (1897), we have held that absolute immunity from liability for defamation exists for ... statements made by attorneys in connection with a proceedi......
  • Bar Grp., LLC v. Bus. Intelligence Advisors, Inc., CIVIL ACTION H–16–0428
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 22, 2017
    ...in Front v. Khali , 24 N.Y.3d 713, 718, 28 N.E.3d 15, 18 (2015), opined,Commencing with this Court's 1897 decision in Youmans v.Smith , 153 N.Y. 214, 47 N.E. 265 (1897), we have held that absolute immunity from liability for defamation 215 F.Supp.3d 548exists for oral or written statements ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT