Gray v. Brooklyn Union Publishing Co.

Hatch, J.: At the trial defendant sought upon cross-examination, and also by affirmative proof, to show that an article similar to the one which formed the basis of this action was published in other papers prior to the publication by the defendant. The question first arose upon the cross-examination of one of the witnesses for the plain [287] tiff, who was asked : “ Did you see this article or a similar article in reference to the plaintiff in any other papers before it was published in The Standard- Union ?” This was objected to upon the ground that it was “ immaterial, incompetent, irrelevant and outside of the pleadings.” The court said: “ I think it is competent on the question of malice.” The plaintiff excepted to the ruling and the witness stated : “ I am unable to say.” Thereupon the court observed : “ It is no defense to an action, but it goes to the question of whether a person did a thing maliciously. In Root vs. King, the leading case in this State, that held that even rumor could ~be pleaded in justification of malice.” Nothing further was elicited from this witness. When the plaintiff was called to the stand, counsel upon cross-examination asked : “You have named the different papers where this was published, a similar article, among others it was published in the Herald too, was it not ? ” The assumption, in the question as to the naming of the papers was wholly gratuitous, as the witness had named none nor had any been referred to by name, aside from The Standard- Union. The question, however, was objected to ; no answer was given, and the court observed: “I will allow you to prove by your editors and publishers the fact.” Plaintiff excepted. After another answer, the court asked: “Was it published in tlie Herald t ” and the witness answered : “ I couldn’t say, the Journal and Citizen and World, and several papers.” Counsel for defendant then asked: “And the Eagle f ” and the witness answered, “ Yes, sir.” The defendant called the city editor of The Standard-Union as a witness, and asked of him “ What paper did you see it in?” The plaintiff objected, and the court asked: “Before you published?” and the witness replied: “ Yes, sir.” The court then ruled that the evidence was competent on the question of malice, and the plaintiff excepted to such ruling. The witness thereupon testified that he verified the article in other papers; that he thought from the morning World that the printed slip contained the facts, and he had it rewritten and printed it. It is, therefore, apparent that the attempt upon the part of the defendant was to prove the publication of this article in other newspapez’s, and the ruling of the court permitted the testimony as bearing upozz the question of malice, and, therefore, going hi mitigation of damages. When the question first came up the plaintiff propez-ly objected, stating fully [288] the grounds of his objection. The court was, therefore, fully-apprised of the point of objection, and ruled with a full understanding of the question sought to be raised. The objections, after the-first, were general in character, but the point was fairly taken when the question first arose. As no one was misled, the question was-properly raised, and the exception thereto is available. (Montignani v. E. V. Crandall Co., 34 App. Div. 228.) I am of opinion that this ruling constitutes reversible error. There was no pretense that the defendant had seen the article in the newspapers mentioned in the answer to the question by the court,, except the World, or in the Eagle, which the question of the counsel for the defendant produced. It is not now claimed that the defendant was influenced in what it did by anything appearing in these-papers, and it is not now suggested that any ground exists which justifies this evidence under the most liberal construction. This evidence, therefore, was not competent for any purpose. Evidence in mitigation must consist of those circumstances which,, while not arising to the dignity of a justification of the charge as. truthful, yet do in an appreciable degree tend toward that end, and thus permit of an inference that the defendant was not actuated by malice in publishing the libel. “ They must be of such a nature as. to show that defendant, though mistaken, believed the charge to be true when it was made.” (Mattice v. Wilcox, 147 N. Y. 634.) There is not a scintilla of proof that the defendant believed the charge to be true after reading the article. Its editor does not state that he believed to be true what he read in the newspaper from which the article was taken. The bare fact is that other newspapers published the libel; beyond this the proof does not go. Even though enough had appeared to legally constitute mitigating circumstances, and we so construe this evidence as such, still matter in mitigation must be pleaded in order to be available as evidence. (Bush v. Prosser, 11 N. Y. 347; Willover v. Hill, 72 id. 36; Hatfield v. Lasher, 81 id. 246.) And such pjeading must relate to the charge in the publication, construed in the sense understood by people generally, giving to such words their ordinary meaning. (Brush v. Blot, 16 App. Div. 80.) Tested by this rule it is clear-that this evidence was not pleaded in mitigation. This objection was taken when the subject-matter first came up, and the court. [289] ruled in respect thereto. In no view, therefore, can the ruling of the court be upheld. The judgment should be reversed and a new trial granted, costs • to abide the event. All concurred, except Goodrich, P. J., who read for affirmance..