#### Charlotte A. L. d’Auxy, Plaintiff, *v.*The Star Company, Defendant.

(Supreme Court, Kings Trial Term,

May, 1900.)

Libel — Privilege of newspaper report of a judicial proceeding — Malice — Code O. P., § 1907.

A fair and true newspaper report of the proceedings in a divorce case is privileged, but where the report falsely states that the defendant’s counsel therein asserted or intimated in court the truthfulness of the testimony of a servant, in regard to the plaintiff therein and *389herein, which was libelous *per se,*that is proof of malice, within section 1907 of the Code of Civil Procedure, sufficient to destroy the privilege with regard to the entire report.

Action for damages for libel. The words alleged are as follows: “ Madame la Duchesse d’Auxy sued her husband in the Supreme Court yesterday for alimony and counsel fees. The counsel fees are to be used in another suit for absolute divorce against him. They were separated in February, 1897, legally, because he had deserted her. Justice Osborne granted to her the custody of her daughter, Genevieve Felicite Eose Marie Ange, Comtesse d’Auxy then nine years of age. A servant named Jennie Yallon said that when she was in the house of Monsieur le Due, in 1896, Madame la Duchesse taught her daughter to call Monsieur a pig. The servant said: *‘*Madame la Duchesse told me that she wanted a divorce from Monsieur le Due in order that she might marry a former President of the United States who courted her before her marriage to Monsieur le Due.’ Joanna Luxem, a governess who served in M. le Due’s chateau de Heufrille, in Belgium, said: ‘ I came to this country with M. le Due and Mme. la Duchesse and lived at their home at Ho. 1031 Fifth avenue. The Count Edgar d’Auxy, brother of M. le Due, came to see them in 1890. He fell ill and died in October of that year. He had said to me: *‘*My sister-in-law has poisoned me; she will kill me some day.’ *‘*How absurd these servants’ statements are’ exclaimed the- counsel of Mme. la Duchesse. *‘*How marked by the stamp of verisimilitude ’ said the counsel of M. le Due, sententiously.” This is only an extract from a news article in the defendant’s newspaper. The complaint was dismissed on the evidence on the ground that the article was a fair and true report of a judicial proceeding, published without actual malice. Motion for a new trial.

Henry Cooper for plaintiff.

Clarence J. Shearn for defendant.

Gaynoe, J.:

The entire article purports to be a condensed statement of the contents of the affidavits read on a motion by the plaintiff for alimony and counsel fee in an action by her against her husband in the Supreme Court for a divorce. Only the particular affidavits from which the alleged libelous matter was taken were *390put in evidence. If it be a substantially accurate report it is privileged, though the matter be untrue (Salisbury v. Union *&*Adv. Co. 45 Hun, 120). Section 1907 of our Oode of Civil Procedure provides that an action cannot be maintained against a reporter, editor, publisher or proprietor of a newspaper for the publication therein of a “ fair and true report ” of aüy judicial proceeding “ without proving actual malice in making the report.” Where the matter published is a fair and true report, the publication itself of course furnishes no proof of malice, and the case cannot go to the jury without evidence *de hors*that the report was made from malice. Whether the report be a fair and true one is obviously a question for the court in the first instance. If it be true it is fair. If it be untrue, it is not covered by the privilege at all; and if the question of its fairness be capable of different conclusions, then the question of privilege is for the jury, and depends on whether they find the report fair or unfair. There was no evidence *de hors*of malice in this case, and the court finding by comparison that the matter complained of was a substantially true summary of the affidavits submitted on the motion for alimony and counsel fee, and put in evidence herein, dismissed the complaint. Ho mention was made on the argument of the motion to dismiss, of the reported comment of counsel in the article in respect of the statements in the affidavits of servants, including the charge of poisoning against the plaintiff by her brother-in-law, stated in one of the said affidavits, viz.: *“ ‘*How absurd these servants’ statements are ’ exclaimed the counsel for Madame la Duchesse.” *“*How marked by the stamp of verisimilitude,’ said the counsel of M. le Due, sententiously.” This means how likely or probable, or like the truth, they are. It is an assertion in support of the truth of such statements. There was evidence that no comments were made by counsel in court. If that be true the report is in this respect not true, and the comment is that of the defendant, and libelous *per se.*It is a holding of the statements up as probably true by the defendant. Such comment being therefore not covered by the defendant’s privilege, is not only a ground in itself for the action, but is also evidence on the head of that malice in the making of the entire report which would destroy the privilege in respect of the° entire report.

The motion for a new trial is granted. •