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ZOLL v. ALLEN

September 27, 1950

ZOLL
v.
ALLEN et al.



The opinion of the court was delivered by: MCGOHEY

The defendants move to dismiss the second causes of action for failure to state claims against them upon which relief can be granted.

This is a libel action against a newspaper columnist, the corporation which syndicates his writings to newspapers and a newspaper which published the material complained of. Jurisdiction is grounded on diversity of citizenship. The first cause of action against each defendant which is not challenged on this motion is based on the writing, distribution and publication of the following allegedly false statement about the plaintiff: 'One is to A. A. Zoll, convicted head of American Patriots, Inc. His appeal is pending before the Supreme Court.'

 Each second cause alleges that about two days after the publication of the foregoing, the following was written, distributed and published: 'Note to Editors: (Correction) In Robert S. Allen's column sent for publication March 4-5, A. A. Zoll was erroneously described as convicted head of American Patriots, Inc., and that an appeal from that conviction was pending.

 In fact, Zoll was indicted on charges of attempting to extort money from the then owners of WMCA- then being picketed by Christian Front Sympathizers. The case was later nolle prossed', and that the last paragraph thereof is false and defamatory.

 The complaint then alleges the true facts relating to the indictment to be as follows:

 'Sixth: That on or about the 7th day of July, 1939, the plaintiff was improperly and wrongfully indicted on two (2) counts of alleged attempted extortion, in the Court of General Sessions in the County of New York.

 'Seventh: That thereafter and on or about the 29th day of May 1943, the District Attorney of New York County learning that this plaintiff had been improperly and wrongfully indicted, voluntarily and of his own motion moved in the Court of General Sessions of the County of New York for an order discharging the bail of said Allen A. Zoll, the plaintiff herein, and dismissing the aforesaid indictment.

 'Eighth: That thereafter and on or about the 3d day of June 1943, said motion having regularly come on to be heard before the Honorable Jonah J. Goldstein, one of the Judges of said Court of General Sessions, said motion was granted and an order entered on the 3d day of June 1943, discharging said bail and dismissing the indictment against said Allen A. Zoll, the plaintiff herein.

 'Ninth: That since the 3d day of June 1943, the record of the discharge of the bail and of the dismissal of the indictment against the said Allen A. Zoll, the plaintiff, has been a part of the public record of said Court of General Sessions in the County of New York.'

 The grounds of the motion are (a) that the truth of the alleged libelous paragraph is demonstrated on the face of the complaint, and (b) that on the face of the complaint the paragraph was privileged as a fair and true report of a judicial proceeding.

 It is clear from paragraph 'Sixth' of the complaint that the first sentence of the offending paragraph is a truthful report of plaintiff's indictment on charges of attempted extortion. Plaintiff argues, however, that the second sentence- 'The case was later nolle prossed.'- is false. His position is that there is no such procedure as 'nolle prossed' or, more properly, nolle prosequi in New York, and cites the Code of Criminal Procedure Sec. 672 which reads: 'The entry of a nolle prosequi is abolished; and neither the attorney-general, nor the district attorney, can discontinue or abandon a prosecution for a crime, except as provided in the last section.' What actually occurred, he says (paragraphs 'Seventh' and 'Eighth'), was the dismissal of the indictment by the court upon recommendation of the district attorney under Sec. 671. *fn1"

 Thus, the nub of the controversy is whether the statement that the case was nolle prossed is so false as to constitute the basis for a libel action.

 At common law the power of nolle prosequi is the power of the prosecuting authority to terminate the instant proceeding in whole or in part. A nolle prosequi, while entitling the accused to an unconditional release from custody, does not operate as an acquittal nor does it bar another indictment and prosecution for the same offense. 22 C.J.S., Criminal Law, Sec. 456. The enactment of Sec. 671 accomplished the transfer of the power of nolle prosequi from the prosecutor to the court. *fn2" Under Sec. 673 dismissal of a felony indictment under Sec. 671 is not a bar to another prosecution for the same offense. The crime of attempted extortion is a felony in New York. *fn3"

 It is apparent, therefore, that the dismissal here differed from a nolle prosequi only in that it was by the court upon the recommendation of the ...


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