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RICHARD H. WILLIAMS v. ROBERT W. WILLIAMS (01/23/69)

COURT OF APPEALS OF NEW YORK 1969.NY.40246 <http://www.versuslaw.com>; 246 N.E.2d 333; 23 N.Y.2d 592 decided: January 23, 1969. RICHARD H. WILLIAMS, RESPONDENT,v.ROBERT W. WILLIAMS, APPELLANT, ET AL., DEFENDANT Williams v. Williams, 27 A.D.2d 550, modified. Counsel Daniel A. Pollack for appellant. Bernard A. Green for respondent. Opinion by Judge Jasen. All concur, Judge Burke in a separate opinion in which Judges Scileppi, Keating and Breitel also concur, except Chief Judge Fuld, who dissents in part and votes to reverse and dismiss the complaint in an opinion in which Judge Bergan concurs. Author: Jasen


Williams v. Williams, 27 A.D.2d 550, modified.

Opinion by Judge Jasen. All concur, Judge Burke in a separate opinion in which Judges Scileppi, Keating and Breitel also concur, except Chief Judge Fuld, who dissents in part and votes to reverse and dismiss the complaint in an opinion in which Judge Bergan concurs.

Author: Jasen

 Plaintiff Richard H. Williams and his brother, defendant Robert W. Williams, were two of the principals in the Universal Oven Company, Inc. Apparently plaintiff decided to end his association with the corporation, much to the displeasure of his brother and other members of the corporation. The Universal Oven Company, Inc., at the instigation of defendant, instituted an action (hereinafter referred to as the Universal action) against plaintiff and filed the summons and complaint with the County Clerk of New York County. The complaint alleged that plaintiff herein conspired with others to misappropriate and misuse the company's trade secrets and assets. Thereafter, defendant had copies of the summons and complaint in the Universal action printed and circulated to members of the trade. A covering letter signed by Mrs. Harry R. Williams, Chairman of the Board of Universal, was included with the copies and stated: "We enclose for your information a copy of the summons and complaint on file in the office of the Clerk of The County of New York in our suit against former employees and consultants of the Universal Oven Company."

Plaintiff, believing he had been unjustly maligned by defendant's complaint and the use to which it had been put, brought the present suit.

Special Term denied a motion by the defendant to dismiss plaintiff's complaint and the Appellate Division affirmed.

It should be noted at the outset that, since this is a motion to dismiss plaintiff's complaint under CPLR 3211, we must presume that plaintiff's allegations are true. (Denihan Enterprises v. O'Dwyer, 302 N. Y. 451.)

Plaintiff alleges two causes of action, one sounding in abuse of process and the other in libel. He claims that the Universal action was totally without basis in fact and was begun solely for the purpose of ruining his business reputation by widespread publication of the complaint.

The defendant contends that the complaint does not state facts sufficient to constitute abuse of process, and he further asserts that neither cause of action may be upheld because section 74 of the Civil Rights Law prevents the maintenance of an action against any person for the publication of a fair and true report of a judicial proceeding.

We agree with defendant that the complaint does not state a cause of action for abuse of process. "The gist of the action for abuse of process lies in the improper use of process after it is issued." (Dean v. Kochendorfer, 237 N. Y. 384, 390; Hauser v. Bartow, 273 N. Y. 370.) Process is a "direction or demand that the person to whom it is directed shall perform or refrain from the doing of some prescribed act." (Matter of Smith, 175 Misc. 688, 692-693.) It follows that there must be an unlawful interference with one's person or property under color of process in order that action for abuse of process may lie.*fn1 We find no such interference in this case.*fn2

However, we hold that plaintiff has set forth a cause of action in libel and that section 74 of the Civil Rights Law does not provide a defense. The legislative history of section 74 reveals that it was not intended to apply to the unusual factual pattern of this case.

Section 74 had its genesis in section 1907 of the former Code of Civil Procedure which originally provided that an action for libel could not be maintained against "a reporter, editor, publisher, or proprietor of a newspaper for the publication therein of a fair and true report of any judicial * * * proceedings" unless it could be established that there was actual malice in making the report. (See L. 1854, ch. 130, §§ 1, 2.)

This court, in Lee v. Brooklyn Union Pub. Co. (209 N. Y. 245, 248-249 [1913]), discussed the nature of the privilege established by section 1907 as follows: "It is to be observed that this is not a case of absolute privilege, which attaches to judicial proceedings, nor is it a case of qualified privilege resting upon some duty or interest of the one making the publication. Cases under those heads have little or no relevancy, and, as no case directly in point in this jurisdiction has been discovered by us or called to our attention, we must look to the reason upon which the claim of privilege in this case must rest. The obvious reason is the public interest in having proceedings of courts of justice public, not secret, for the greater security thus given the proper administration of justice. For that reason it was early provided by statute in this state, that 'the sittings of every court within this state, shall be public, and every citizen may freely attend the same.' (1 R. S. part 3, chap. 3, § 1; see, also, Judiciary Law, § 4.) The public generally may not attend the sittings of the courts, but they may be kept informed by the press of what goes on in the courts * * * The point is that the proceeding was one which the public had the right to hear and the defendant had the right in the public interest to report."

This qualified privilege was re-enacted into our then new Civil Practice Act as section 337. (L. 1920, ch. 925.)

However, in 1930, the statute was amended by deleting the exception for actual malice and rendering to newspapers an absolute privilege in publishing fair and true reports of judicial proceedings. (L. 1930, ch. 619.) The apparent reason for removing the malice limitation was to afford the news media a greater freedom to publish news of public interest without fear of suit.

In 1940 section 337 (L. 1940, ch. 561) was expanded to apply to "any person, firm or corporation". The Judiciary Committee of the Assembly (1940 Assembly Journal, vol. 1, pp. 1020-1022) in reporting on this change said: "This amendment confers upon all persons the same privilege now accorded to newspapers and radio broadcasters by sections 337 and 337-a of the civil practice act, which privilege, by decision of the court of appeals is accorded to all persons (see Lewis v. The Chemical Foundation Incorporated, et al., 262 N. Y. 489 (1933); Seelman, Libel and Slander in the State of New York, Sec. 213)."

In the above-mentioned Lewis case, the defendants were sued for libel when they sent out copies of newspaper reports of testimony in an examination before trial. The Trial Judge charged the jury that the communication was privileged because it contained a fair and accurate report of a judicial proceeding, and that the verdict must be for the defendants unless the plaintiff proved express malice on the part ...


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