I dissent and vote to reverse the judgment and order a new trial on account of the error of the court in instructing the jury concerning the burden of proof on the issue of fair comment.
No more devastating accusation than that contained in the article could have been devised — no accusation more humiliating to any honest man. Unlike Hoeppner v. Dunkirk Printing Co. (254 N. Y. 95) and Briarcliff Lodge Hotel, Inc., v. C-S. Publishers, Inc. (260 id. 106), the article here did not consist of mere comment but, unless legally justifiable, was libelous per se. It was charged that the plaintiffs were “ thieves ” and “ grafters ” in that John W. Kenna during several years had collected tribute from persons engaged in commercialized vice. These charges were said to be established by testimony of the plaintiffs in the course of a public investigation into the practices of attorneys in the Magistrates’ Courts and the comments of the referee therein.
It was later discovered that a serious mistake had been made and that the deposits by the plaintiffs in their bank accounts were all of honestly acquired funds. The defendants then published a retraction. In their answers they did not undertake to plead justification, but relied on the defense of fair comment, contending at the trial that the article correctly set forth the testimony of the plaintiffs given in the course of a public investigation together with the observations of the referee, and that the imputations of dishonesty were warranted by the facts stated as an honest expression of the defendants’ opinion. (See Foley v. Press Publishing Co., 226 App. Div. 535, and authorities cited.) The defendants, of course, had the right accurately to report the proceedings in this public investigation, including the testimony given *631and the observations of the referee. When, however, they undertook to make a direct charge of dishonorable conduct against the plaintiffs, it was incumbent upon them to establish that the accusation was justified by the facts disclosed.
A consideration of the plaintiffs’ testimony in the investigation could not, as it seems to me, warrant the statement in the article that they were “ thieves ” and “ grafters ” or the further implication that the plaintiff John W. Kenna was engaged in attempting to “ cheat the cheaters,” for nothing was established in the investigation except that both plaintiffs had deposited substantial sums of money in their bank accounts. No evidence was given that these funds were derived from any improper source and the most that could be said against the plaintiffs as a result of their testimony was that they were unable, on short notice, to furnish a complete audit of a multitude of transactions covering a period of six years.
However this may be, it was particularly important under the circumstances that the jury should know that even though the defendants had the right correctly to report the facts disclosed during the investigation, the burden of proof rested upon them also to satisfy the jury that the charge in the article that the plaintiffs were “ thieves ” and “ grafters ” was fairly justified by the facts stated and was, furthermore, an honest expression of the defendants’ opinion. The circumstance that the article contained certain facts of public interest which could be the subject of fair comment did not reheve the defendants from the necessity of estabhshing the other elements without which their defense of fair comment would be incomplete. (Stuart v. Press Publishing Co., 83 App. Div. 467.) Instead of placing that burden on the defendants, where it properly belonged, the court in its charge subjected the plaintiffs to the necessity of estabhshing by a preponderance of the proof that the article was “ not a fair and true report of the proceedings in question and a fair comment thereon.” It refused, over the plaintiffs’ exception, the request to charge as follows: “ The defendants have the burden of proving that the article complained of was justified on the ground of privilege or fair comment. The burden of proof means that the party having that burden must establish by the fair preponderance of the evidence the subject matter of his defense or of his complaint, and the claim that the article complained of is privileged and is fair comment is a part of the defense in these actions which must be proved by a fair preponderance of the evidence by the defendants.” These rulings, which relieved the defendants of the necessity of establishing the defense of fair comment by a preponderance of the proof and *632placed upon the plaintiffs the burden of disproving the existence of that defense, was error of so serious and fundamental a character as alone to require the reversal of the judgment. (Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45; Kay v. Metropolitan Street R. Co., 163 id. 447; Heinemann v. Heard, 62 id. 448.)
Martin, P. J. (dissenting). I concur in the result reached in the dissenting opinion in this case. It would be a very unwise rule to compel a plaintiff who has been libeled to sustain the burden of proving that the libelous article was not a fair comment on a judicial proceeding. The defense of fair comment must be pleaded and proved and the burden of proof should, at all times, rest with the defendant. (Smith v. New Yorker Staats-Zeitung, 154 App. Div. 458; Briarcliff Lodge Hotel, Inc., v. C-S. Publishers, Inc., 260 N. Y. 106; Heinemann v. Heard, 62 id. 448.) While it may be true, as argued, that-the result in this case would not have been different if the correct rule had been applied, nevertheless, the burden should be on the defendant, in all such cases, to show that the otherwise libelous article was fair comment.
Judgments affirmed, with costs.