Friday, May 22, 2009

Bat Masterson and Benjamin Cardozo

One does not associate Benjamin Cardozo with Bat Masterson, the legendary western lawman and gambler. 

That is what I thought until I recently came across the article "Benjamin Cardozo Meets Gunslinger Bat Masterson" by William H. Manz in the July/August 2004 issue of the Journal of the New York State Bar Association. 

In 1903 Masterson came east to New York City. A boxing enthusiast, he became a sports editor and columnist for the Morning Telegraph. 

The confrontation with Cardozo began with a series of columns Masterson wrote in 1911 about an upcoming bout between "Oklahoma Giant" Carl Morris and "Pueblo Fireman" Jim Flynn. When Masterson learned that both fighters were financed by Morris' manager, Frank B. Ufer, he charged that Flynn was being paid to "lie down" for Morris.

A front page article then appeared in the New York Globe and Commercial Advertiser in which Ufer was quoted as saying Masterson had "made his reputation by shooting drunken Mexicans and Indians in the back."

Masterson sued the Globe publisher Commercial Advertiser Association for libel, and Commercial Advertiser retained Cardozo for the defense. According to the Manz article the record shows that Cardozo's strategy was to maintain that Ufer's comment was not meant to be taken seriously and that it could not have caused Masterson's reputation any harm.

The trial began on May 20, 1913, in Supreme Court, New York County. The highlight was Cardozo's cross-examination of Masterson in which Cardozo sought to show that Masterson had killed many men and there had been many articles about his exploits. Masterson, however, was steadfast that the fact alone that he was said to have killed a man was not an attack on his reputation, but the false claim that he had shot drunken Mexicans and Indians in the back was an attack on his reputution.

The jury brought in a verdict of $3,500 for Masterson, plus $129.25 in costs. Cardozo appealed to the Appellate Division, First Department, and on December 19, 1913,  the Court by a 3-2 vote reversed the judgment and ordered a new trial unless Masterson stipulated to a verdict of $1,000. The two dissenters would have affirmed the judgment. Masterson v. Commecial Advertiser Assn., 160 A.D. 890, 144 N.Y.S. 1129. 

Manz writes that there is no record of a further appeal, so it must be assumed Masterson settled for the $1,000. Less than a month after the Appellate Division decision, Cardozo became a judge in  the Supreme Court, New York County. Masterson remained a sportswriter until his death in 1921. According to Manz, he is buried in Woodlawn Cemetery in the Bronx.       

1 comment:

  1. Dear Norman:

    I can honestly say "I didn't know that!"

    Thanks for the legal lore.

    Mark E. Seitelman