Wolf v. Gold

Memorandum by the Court. Judgment in this action for libel and slander, in favor of plaintiffs against defendant Anna Gold for $60,000, and dismissing the complaint as against defendant Jacob Gold, affirmed, on the opinion of Mr. Justice Coleman at Special and Trial Term, with costs to plaintiffs-respondents against defendant Anna Gold, and without costs to defendant Jacob Gold. In light of the dissenting opinion by Mr. Justice McNally, comment additional to that contained in the opinion rendered by the trial court is merited. It is evident that the trial court held, correctly, that, in the first instance, a case had been made out against defendant Jacob Gold and that a bare circumstantial ease had been made out against both defendants with respect to the letters, sufficient to merit weighing the proof as a question of fact. The trial court, however, concluded that, as the fact-finder in this non jury ease, it was not persuaded that defendant Jacob Gold was proven responsible for the slander or that it was clear enough that the letters had emanated from either or both of the defendants. This the fact-finder was empowered to conclude, even though, prima facie, a case had been made out. In short, where the ultimate facts must be found only by inference from uncontradicted evidentiary facts, the fact-finder must still be persuaded that the inferences are merited (George Foltis, Inc., v. City of New York, 287 N. Y. 108, 118; 9 Wigmore, Evidence [3d ed.], § 2494; cf. Hull v. Littauer, 162 N. Y. 569, 572-574). While this court might have sustained a contrary conclusion, the views of the Trial Justice, reached after careful and deliberate consideration supported by equally careful elaboration, are entitled to weighty consideration. The trial court’s opinion (N. Y. L. J., July 12, 1962, p. 5, col. 8) negates any failure to apportion the proper weight to the various elements contained in the record.