Johnson v. Synett

BROWN, P. J. This action was brought to recover damages for an alleged libel. The appellants are the proprietors and publishers of the Westchester County Tribune, a newspaper published at New Rochelle, in Westchester county. On May 25,1894, the following article appeared in that paper: “It is reported about town that Rev. Mr. Johnson, the M. E. colored minister from this place, was, one day last week, arrested in- New York, after he alighted from the train at the Grand Central Station. It is claimed that he was too much of a family man. He is still under cover.” At the opening of the case, the appellants’ counsel moved to dismiss the complaint, upon the ground that the article was not libelous, and, at the close of the plaintiff’s testimony, moved that a verdict be directed for the defendants, on the ground that facts sufficient to constitute a cause of action had not been proven. These motions were denied, and exceptions taken to the court’s ruling. There is no doubt but that the publication is libelous per se. Shelby v. Association, 38 Hun, 474; Id., 109 N. Y. 611, 15 N. E. 895; Moore v. Francis, 121 N. Y. 199-204, 23 N. E. 1127; Morey v. Association, 123 N. Y. 210, 25 N. E. 161. The defendants admitted that they were the publishers of the newspaper and that the article was published therein, but denied that it was published with malice or intended to injure the plaintiff. The plaintiff gave evidence that the paper was generally sold on the streets of New Rochelle, but proved no sales of the issue containing the article in question. He, however, proved an interview with the defendants, in which they admitted the publication, and offered, if the article was untrue, to publish a retraction. A copy of the paper with the article therein was produced on the trial. This proof was sufficient to carry the question of publication and circulation to the jury, and the request to charge the jury that there was no evidence of circulation, and that one copy was not evidence of circulation, was properly denied. Marx v. Publishing Co. (Sup.) 12 N. Y. Supp. 162; Id., 134 N. Y. 563, 31 N. E. 918; Townsh. Sland. & L. (4th Ed.) § 373. The judgment must be affirmed, with costs. All concur.