O'Brien v. Bennett

Fursman, J.: A libel has been defined to be “ a censorious or ridiculing writing, picture or sign, made with, a mischievous and malicious intent [370] towards government, magistrates or individuals.” (People v. Croswell, 3 Johns. Cas. 353.) “ A libel is a malicious publication * * * tending either to blacken the memory of one dead or the reputation of one who is alive,-and expose him to public hatred, contempt or ridicule.” (Commonwealth v. Clap, 4 Mass. 168; Ryckman v. Delevan, 25 Wend. 198.) . In the present case the obvious and necessary effect of the publication was to expose the plaintiff to public ridicule and contempt, and it was, therefore, libelous. It refers to the plaintiff by name and manifestly is a publication “ of and concerning ” him. “ A writing published maliciously, with a view to expose a person to contempt and ridicule, is undoubtedly actionable.” (Steele v. Southwick, 9 Johns. 214.) In a case like this the law presumes malice and evidence of express malice is unnecessary. (Fry v. Bennett, 5 Sandf. 54; Klinck v. Colby, 46 N. Y. 431.) On the trial, however, the plaintiff was permitted to prove, under objection and exception, that on a certain occasion one Fryer produced a copy of the paper containing this article, and in the presence of the plaintiff and others gave his interpretation of its meaning in words that must have been exceedingly offensive to the plaintiff. The evidence thus admitted is, in substance, that Fryer accused the plaintiff of being at Coney Island with a prostitute and being arrested there, stated that he could prove it, and for that purpose produced the paper Containing this article. This evidence was admitted by the learned trial justice for the purpose, as stated by him, of indicating “how the article was interpreted and to whom it referred.” This we think was error. In People v. Parr (42 Hun, 314) it was held that testimony of a witness that he recognized from the article that the plaintiff was the person to whom it referred was improper, and in Stokes v. Morning Journal Assn. (66 App. Div. 569) it was held that where the article does not refer to the plaintiff by name he may give proof showing that the particular circumstances adverted to in it are descriptive of him and his surroundings, but that he is not -entitled to inquire of a witness whether from the article itself he identified the plaintiff as the person referred to. In both of these cases the reason of the rule is stated to be that,- if this kind of testimony is admitted, the defendant might call witnesses to show that they did not recognize the plaintiff as the person referred to and that “ such testimony would be plainly improper.” [371] In the present case the plaintiff was referred to by name and as “ of Albany, N. Y.,” where he had a place of business, yet he was per-, mitted to prove that a person who was not called as a witness not only understood the article as referring to the plaintiff, but also to give the interpretation of this third person as to its meaning. The reason given in the cases above cited for holding the evidence improper when directed to identify in cases where the articlé itself does not specifically name the person libeled applies with equal force to direct evidence as to how others understood it, for, if the plaintiff may call witnesses to prove their understanding in this respect, certainly the defendant may do so. The error is even more vicious when a witness is allowed, as in this case, to state the interpretation that a third person who is not produced as a witness and who is proved to be unfriendly to the plaintiff put upon the article. (Clary-Squire v. Press Publishing Co., 58 App. Div. 362, 365.) The case of Stafford v. Morning Journal. Assn. (68 Hun, 467) is not in conflict with these views. In that case the article complained of was an advertisement, the intended and necessary effect of which was to cause persons to address letters to the plaintiff and to call on her with reference to the matters advertised. Under these circumstances the court admitted proof that letters were sent to the plaintiff and that persons called on her to her annoyance, and this was sustained. It was proper in that case to show that the advertisement produced the effect directly intended to be produced by it j but that is quite different from permitting a witness to testify to whom he understood it to refer or what he understood it to mean. We cannot say that in this case the evidence was harmless. On the contrary, it is more than likely to have had great weight with the jury on the question of damages. It is sufficient, however, that this evidence may have affected the verdict, and, therefore, the error in admitting it cannot be disregarded. (Erben v. Lorillard, 19 N. Y. 302.) The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred ; Parker, P. J., and Chase, J., in result. Judgment and order reversed and new trial granted, with costs to appellant to abide event.