Smith v. New Yorker Staats-Zeitung , 138 N.Y.S. 557 ( 1912 )

Newburger, J.

The complaint herein shows that the article complained of charges the plaintiff with having been arrested by two post-office inspectors for fraudulent use of the mail and held in bail for trial. The plaintiff admits that he was arrested and held for further hearing or trial., The mere fact that he was subsequently discharged is of no consequence in this proceeding, as such discharge occurred after the publication of the article complained of. From the admissions by plaintiff in his complaint, the article was a report of a judicial proceeding, and it appeared to be substantially correct. It was, therefore, privileged. It has been repeatedly held that where a complaint not only states facts sufficient to constitute a cause of action, but also alleges facts which would constitute a defense, the whole must be considered together in determining whether a proper cause of action has been stated. See Calvo v. Davies, 73 N. Y. 211; Corr v. Sun Printing Co., 177 id. 131. The demurrer herein is sustained. Settle order on notice.

Demurrer sustained.