Wolfson v. Syracuse Newspapers, Inc.

Taylor, J.

(dissenting). This action was commenced on May 7, 1937. Plaintiff’s amended complaint sets forth a news article and an editorial of an alleged defamatory nature which are charged to have been published of and concerning plaintiff in the December 16, 1935, edition of the defendant’s daily newspaper and which are alleged to have been continuously published by defendant up to the time of the commencement of this action; it is further alleged that the defendant has maintained, in connection with its newspaper business, a reading room open to the general public wherein the libelous matter has been made available to the public and has been read therein by various persons.

Defendant moved to dismiss the amended complaint upon the ground that the causes of action, therein alleged, were barred by the Statute of Limitations. In opposition to the motion, plaintiff submitted the affidavit of a third person which recited, in substance, that the affiant, between March 11 and 24, 1937, read the alleged libels in a bound volume of defendant’s newspapers which defendant made available to him in its reading room. The Special Term dismissed the amended complaint and ruled that, it being the normal custom of publishers of newspapers to preserve a copy of each edition and to permit any one access thereto upon request, libelous matter *214read under such circumstances was not newly or separately published because the owner of the newspaper had not taken any affirmative action to bring the libels to the attention of the reader.

I am unable to agree with this determination. The custom of publishers of newspapers is wholly immaterial to the question of publication, and permission to read its files which contained the libels was an affirmative act by which the defamatory matter was communicated to the reader. That defendant, the composer of the defamatory matter, did not intend or expect that it would be read on the particular occasion is also immaterial on the question of publication. The law is well settled:

That a libel is published when it is read by any one but the one defamed (Kennedy v. Butler, Inc., 245 N. Y. 204; Ostrowe v. Lee, 256 id. 36; Duke of Brunswick v. Harmer, 14 Q. B. [Adol. & Ell., N. S.] 185);

That, unless occasioned by the wrongful act of a third person, an accidental or inadvertent communication is a publication of a libel if the communication resulted from any act or default on the part of the writer (Odgers on Libel and Slander [6th ed.], p. 137, and cases there cited); and

That each publication of the libel is a wrong which gives rise to a separate cause of action (Woods v. Pangburn, 75 N. Y. 495; Cook v. Conners, 215 id. 175).

It is my opinion that the application of these rules to the allegations of the amended complaint requires the conclusion that if the defendant, having preserved the libels in its files, permitted its files to be read and as a consequence the libels were read, such reading constituted publication, thus giving rise to a cause of action separate and distinct from the cause of action arising from the circulation of defendant’s newspaper on December 16,1935. While it is to be conceded that the causes of action, based upon the December 16, 1935, publication, are barred by the Statute of Limitations, the alleged causes of action, based on the March, 1937, publication of the news article and editorial, arose within the year preceding the commencement of the action. (Civ. Prac. Act, § 51.) The amended complaint, therefore, should not have been dismissed.

The judgment should be reversed and the order modified by providing that the causes of action, based upon the December 16, 1935, publication, be dismissed and that plaintiff serve a further amended complaint alleging only the cause of action based upon the March, 1937, publication.

Sears, P. J., concurs.

Judgment affirmed, with costs.