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BROWN v. DU FREY

1 N.Y.2d 190 (1956)

John H. Brown, Respondent, v. Ernest Paul Du Frey, as Executor of Florence E. Browne, Deceased, Appellant.

Court of Appeals of the State of New York.

Decided April 27, 1956.

Attorney(s) appearing for the Case

Samuel Weisstein for appellant.

Milton W. Levy and Moe Sobel for respondent.

DESMOND, FULD and BURKE, JJ., concur with CONWAY, Ch. J.; DYE and VAN VOORHIS, JJ., dissent in the following memorandum: Regardless of whether a cause of action can be maintained for testamentary libel, a point which is not raised by this record, it was at least incumbent upon plaintiff to prove actual malice and special damages in order to sustain a recovery based upon this allegedly defamatory charge. The judgment should be reversed and the complaint dismissed. FROESSEL, J., taking no part.

CONWAY, Ch. J.

Plaintiff instituted this suit in the City Court of the City of New York against defendant, Ernest Paul Du Frey, as executor under the last will and testament of Florence E. Browne, deceased, seeking damages on a cause of action based upon an alleged testamentary libel. The jury returned a verdict in favor of plaintiff in the sum of $5,000 and the Appellate Term and the Appellate Division have both...

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