On certified appeal from the Law Division to the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling and Jacobs. For reversal -- Justice Weintraub. The opinion of the court was delivered by Heher, J. Weintraub, J. (dissenting).
The action is for libel; and the case is here by our certification of plaintiff's appeal to the Appellate Division of the Superior Court from a summary judgment for all defendants.
The complaint, in three counts, charges that on September 17, 1954 the individual defendants, Green, Cuccio, Engel, Hollenbeck, Ochsner and Pfister, "composed, wrote, published and distributed to newspaper reporters and others in the City of Hackensack," New Jersey, certain "false, malicious and defamatory matter," therein specified, "of and concerning the plaintiff, and of him in his office as a member" of the Board of Freeholders of the County of Bergen "and Director thereof, and of his conduct in said offices, in his business and individually," and the defendant Hudson Dispatch, the corporate publisher of the Hudson Dispatch, a daily morning newspaper of wide circulation in the City of Union City and in the counties of Hudson and Bergen and surrounding areas in New Jersey, and the defendant The Evening News Publishing Company, the corporate publisher of the Newark Evening News, a daily evening newspaper of wide circulation in the counties of Essex, Bergen and Hudson and elsewhere in New Jersey, published in their respective newspapers on the given date certain of the alleged "false,
malicious and defamatory matter," therein also set forth at length, "of and concerning the plaintiff, individually, as a businessman and as a freeholder and director" of the board, each corporate publisher knowing that the "words" so uttered "were not true, and the falsity thereof could have been ascertained by reasonable inquiry or care," all to the damage of plaintiff "in his good name, fame and credit, and position." Kohm was made a defendant as the "special correspondent" of the Newark Evening News who "wrote" the published news article.
The demand in each of the several counts was for "compensatory damages" in a given sum.
The alleged defamatory writing consisted of a "news release" by the "Democratic Campaign Headquarters" at Hackensack, New Jersey, "Ben Green, County Chairman," declaring that the "Democratic candidates for Freeholder of Bergen County charge that a corporation headed by Freeholder Director Frank A. Leers [the plaintiff] made a 500% profit on 27 acres of land in Rochelle Park acquired by the County Park Commission"; and that "In a joint statement released at a special press conference called today, the candidates revealed that the corporation headed by Leers realized a profit of about $10,000 for approximately 27 acres in Rochelle Park," and "asserted that the Saddle-Rochelle Corporation, incorporated by Frank A. Leers, his father William R. Leers and his mother Emma E. Leers, originally purchased the tract of undeveloped land from Rochelle Park for approximately $2000," and plaintiff "sat as a director of the all-Republican Board of Freeholders when that body approved condemnation proceedings which resulted in the windfall profit to his corporation."
"To substantiate their charge," it was therein affirmed, "the Democratic candidates released the following chronology of the acquisition and condemnation of the land by the Leers corporation: On November 24, 1947 the land was acquired through the purchase of a tax lien from the township of Rochelle Park by the Knickerbocker Knolls, Inc., a corporation composed of Frank Leers and his family; on January
12, 1949, Knickerbocker Knolls, Inc. acquired title by foreclosure of tax lien; incorporators of Knickerbocker Knolls, Inc. were listed as Frank A. Leers, William R. Leers, and Emma E. Leers; this corporation was formed November 13, 1946; on January 29, 1949 Knickerbocker Knolls, Inc. sold this land to the Saddle-Rochelle Corporation, incorporators also consisting of Frank A. Leers, William R. Leers, and Emma E. Leers; this land was condemned by the Bergen County Park Commission with the approval of the County Board of Freeholders and was acquired by the Park Commission on October 16, 1953; the Saddle-Rochelle Corporation headed by Freeholder Director Leers was awarded the sum of $12,400; this represented," it was also said, "an approximate profit of $10,000 on this single piece of property."
The released statement then continued:
" These are the shocking facts unearthed in an investigation of the acquisition of only one piece of property in Bergen County's multi-million dollar park commission.
Here we have a picture of a family corporation of the selected leader of the all-Republican Board of Freeholders and one time chairman of the Park Committee profiting by an action by the Board he directed.
Can Mr. Leers explain how he can condone a profit to his corporation through an action taken by him while a servant of the County of Bergen ?
Adding to the inconsistency of Leers' action, the people of Bergen ought to be reminded that less than a month before Leers and his corporation acquired this property (discussing the acquisition of property by the then newly initiated county park system) he was quoted on October 22, 1946 in the public press as follows:
'It is important,' said Leers, 'that such land be set aside and controlled by the park commission, * * *.'
'Such acquisition should not be too difficult or too expensive. * * *'
'Much of the property privately owned, I feel, can be acquired by gift from individuals.'"
The italics designate the words of the release now characterized as "false" and defamatory.
The newspaper publishers (and the defendant Kohm as the writer of the article in the Newark Evening News), it is said in argument, "published substantially said statement and added matters and headlines thereto." The report in
the Hudson Dispatch was headlined: "Charge $10,000 made in sale of park land," with these subheads, "Cite 500 P.C. gain" and "Rochelle Park Parcel Under Fire -- Bought by Official in '47." And in the Newark Evening News the heading was, "500% Deal Profit Charged to Leers," "By William J. Kohm, Staff Correspondent."
But the news article in the Hudson Dispatch did not include or refer to the "picture of a family corporation of the selected leader of the all-Republican Board of Freeholders and one time chairman of the Park Committee profiting by an action of the Board he directed"; and the italicized words "* * * Saddle-Rochelle Corporation, incorporated by Frank A. Leers * * * originally purchased the tract of undeveloped land from Rochelle Park for approximately $2,000" and "Adding to the inconsistency of Leers' action * * *" were not in either newspaper narrative.
The individual defendants (cited as the authors and distributors of the news release) answered denying the article was in content false, malicious and defamatory, and pleading, by way of separate defenses, (1) the truth of the statements, in a circumstantial account of the proceedings and plaintiff's participation in the transaction; (2) their utterance as "a fair comment upon the conduct of the plaintiff in his official capacity," for the information of the "general public," and "privileged" as "a matter of legitimate public interest in accordance with the political practices of our State and Nation"; (3) the complaint does "not set forth a cause of action," nor does it declare "which part of [the] publication was untrue and which parts were true"; and (4) plaintiff has not suffered damage. Defendants reserved "the right" at or before trial to move to strike the complaint "on the grounds set forth in [the] answer."
The newspaper publishers and Kohm pleaded the truth of their respective publications, in an equally circumstantial account of the transaction at issue, and also, by separate defenses, that the published article concerned "acts affecting the plaintiff as a public official in his official capacity," and as to "items of fact" it is "true in substance," and otherwise
constitutes "fair comment upon the conduct of the plaintiff in his * * * official capacity," and so the article "was published as a matter of legitimate public interest within the proper function of the defendant(s) as reporter and publisher of a newspaper." And the corporate publisher of the Newark Evening News and Kohm also pleaded, as separate defenses: (1) the complaint does not disclose a cause of action; (2) the "release was presented to and discussed with plaintiff prior to publication by these defendants" and the "publication sets forth a fair and accurate report of the statement then and there made in response to [the] release," and the "entire article does not purport to express the defamatory meaning or meanings attributed to these defendants' publication by the complaint." The publisher of the Hudson Dispatch also pleaded, as a separate defense, that its publication conformed to the news release, and that the release "was based upon statements made by the plaintiff himself, which * * * he expressly or by implication ...