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De Severinus v. New York Evening Journal Publishing Co.

134 N.Y.S. 664 Court N.Y. App. Div. Decision date 1912-04-12 English

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p. 664
DE SEVERINUS v. NEW YORK EVENING JOURNAL PUB. CO.
(Supreme Court,. Appellate Division, Second Department.
April 12, 1912.).

Headnote

Libel and Slandeb (§ 64[1] )—Newspaper Libel—Mitigation—Other Publications.
That a libelous newspaper article was published first by another newspaper was not admissible in mitigation, unless defendant published the article as hearsay, with a statement of the source of the information under belief that the article was true.
[Ed. Note.—Eor other cases, see Libel and Slander, Cent. Dig. § 165;, Dec. Dig. § 64.*]
Appeal from Trial Term, Kings County.
Action by Lillian' G. De Severinus against the New York Evening Journal Publishing Company. Erom a judgment for plaintiff, and. from an order denying a new trial, defendant appeals. Affirmed.
p. 665
Argued before JENKS, P. J., and BURR, THOMAS, CARR, and. WOODWARD, JJ.
Charles J. Shearn, for appellant.
Theodosius F. Stevens, for respondent.

In an action brought by this plaintiff upon a similar publication by the Press Publishing Company, we decided that a. verdict for $5,000 should be reinstated, despite a reduction by the trial justice. De Severinus v. Press Publishing Co., 147 App. Div. 161 , 132 N. Y. Supp. 80 . It was admitted in that action, as in the action at bar, that the circulation of the newspaper was very large. As there are no circumstances of material difference which relate b> the damages, we should not hold this verdict of $3,000 excessive.

The fact that the article was published first by the defendant in the case cited supra is not admissible in mitigation. There is an exception to this rule, which, however, is not presented in the case at bar. In a case of libel, if the defendant published the article as hearsay, with a statement of the source of its information, proof thereof, and that the publisher at the time of publication believed the article' to be true, is admissible in mitigation, to show freedom from malice. See Newell on Slander and Libel (2d Ed.) 893, 894; Odgers on Libel, and Slander, p. 359.

The judgment and order must be affirmed, with costs.