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Marx v. Press Publishing Co.

12 N.Y.S. 162 Court N.Y. Gen. Term Decision date 1890-12-10 English

Delivered by Dykman, J.

Contents

Majority

p. 162
Marx v. Press Pub. Co.
(Supreme Court, General Term, Second Department.
December 10,1890.)

Headnote

1. Libel and Slander—Action—Proof of Publication.
Evidence, in an action for libel, that the newspaper in which the libel was printed was published at the place of business of defendant, a corporation organized for the purpose of printing and publishing newspapers, etc., is sufficient to sustain a finding that the libel was published by defendant.
2. Same—Justification—Malice.
An answer setting up as a defense the truth of the matter complained of, if not sustained by proof, may be considered by the jury on the question of malice.
Appeal from circuit court, Queens county.
Action by Matthew Marx against the Press Publishing Company, a corporation, for libel. From a judgment for plaintiff, entered on the verdict of a jury and an order denying a motion for a new trial, defendant appeals.
Argued before Dykman and Pratt, JJ.
De Lancey Nicoll, for appellant. S. B. Noble, (A. N. Weller, of counsel,) for respondent.

This is an action for libel, tried at the circuit, where a verdict was rendered in favor of the plaintiff for $1,000. The defendant has appealed from the judgment entered upon the verdict' and from the order denying a motion for a new trial on.the minutes of the court. It is claimed on this appeal that there was no proof of the publication of the libelous article by the defendant. Upon that point the proof was that the defendant was a corporation organized for the purpose of printing and publishing newspapers, books, and pamphlets, and to establish or acquire a printing and publishing office, and that the World newspaper, in which the libel was printed, was published at Ho. 32 Park Row, the place of business of the defendant, and we think such proof was sufficient to put the defendant upon its defense, and to justify the jury in finding the fact of the publication of the libel by the defendant.

The next error assigned is presented in this way: Among the defenses set up by the answer, the defendant substantially charged the truth of the matter contained in the article complained of, and on the trial the counsel for the defendant requested the judge to charge “that there is no evidence in this case that the defendant was influenced by actual malice in publishing its report of this judicial proceeding, aforesaid, if the same was fair and true.” And the court replied: “So charged, other than the justification of the article and its contents.” And the defendant excepted to the response made to such request. The question involved was re-examined by the court of appeals in the case of Cruikshank v. Gordon, 118 N. Y. 178 , 23 N. E. Rep. 457 , and the doctrine of that case sustains the portion of the charge in question. The other questions presented have been examined, but no error is presented.

The judgment and order should be affirmed, with costs.

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