William W. Walling, Appellant, v. Commercial Advertiser Association, Respondent

William W. Walling, Appellant, v. Commercial Advertiser Association, Respondent. Second Department, December 18, 1914. Libel — destruction of privilege by premature publication — question for jury — liability for publication of charge made by another. Where, in an action for libel consisting of publications in the defendant’s newspaper, there is some proof tending to show that the defendant’s privilege was destroyed by premature publication, this question should ■ in the first instance be submitted to the jury. The fact that the defendant only published that the complainants “claim to have learned ” does not relieve it from liability. Appeal by the plaintiff, William W. Walling, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 20th day of December, 1913, upon the dismissal of the complaint at the close of the case by direction of the court upon a trial before the court and a jury at the Queens County Trial Term. Lowen E. Ginn [Richard J. Donovan with him on the brief], for the appellant. Walter H. Pollak [Samuel L. Jackson with him on the brief], for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: The alleged libel consists of two separate publications in the defendant newspaper. I think the publication of November 3rd, if the charges had been filed, was privileged. But there was some proof (I am far from saying that it was sufficient to prevail over that offered by the defendant) which tends to show that the privilege was destroyed by premature publication. (Bingham v. Gaynor, 203 N. Y. 27.) I think that the court in the first instance should have submitted that question to the jury. But as the premature publication, if made, was but a matter of minutes, I fail to see how the plaintiff in' this case could have recovered more than nominal damages in any event, and, therefore, if this were the sole question in the case I would recommend affirmance. But the publication of November the 6th was not privileged. It is contended with much force and learning by the able counsel for the respondent that it is not a libel because the defendant only published that the complainants “claim to have learned,” and, therefore, there was but bare statement that the charge was made by another. We are cited to judgments in England (but see Odgers Lib. & Sland. [5th ed.] 174, 175, 395), Massachusetts and Pennsylvania. But this is not a case of first impression in this State, and I feel constrained, however forceful the argument presented, to follow the authorities in our own jurisdiction as I read them. (Hotchkiss v. Oliphant, 2 Hill, 510; Dole v. Lyon, 10 Johns. 447; Skinner v. Powers, 1 Wend. 451; Mapes v. Weeks, 4 id. 659; Sanford v. Bennett, 24 N. Y. 20; Ropke v. Brooklyn Daily Eagle, 9 N. Y. St. Repr. 709, 712; Townsh. Sland. & Lib. [4th ed.] § 210, and cases cited.) For these reasons I advise a reversal of the judgment and the granting of a new trial, costs to abide the event. Burr, Thomas and Rich, JJ., concurred; Carr, J., not voting. Judgment reversed and new trial granted, costs to abide the event.