p. 923FIRST NAT. BANK OF WAVERLY v. WINTERS.(Supreme Court, Appellate Division, Third Department.Headnote
Libel and Slander ©=134—Libel Per Se —Damages.Where writings published by defendant were libelous per se, in the absence of justification, the plaintiff is entitled to substantial damages.
[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 352; Dec. Dig. ©=114.]
Cochrane, J., dissenting.
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Appeal from Trial Term, Madison County.
Action by the Eirst National Bank of Waverly against Byram L. Winters. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.Byram L. Winters, of Waverly (James Moore, of Oneida, of counsel), for appellant.
Hinman, Howard & Kattell, of Binghamton (Archibald Howard, of Binghamton, of counsel), for respondent.
This is the third trial of this action now passing in review, and the evidence in no material aspect differs from that involved in the previous trial, which was under consideration in First National Bank v. Winters, 165 App. Div. 726 , 151 N. Y. Supp. 332 .
p. 924In reversing a judgment entered upon a verdict of no cause of action rendered by a jury, this court put the determination broadly upon the proposition that the verdict was so clearly against the weight of evidence that the judgment could not be permitted to stand; but the discussion shows conclusively that this court is committed to the theory that the articles published by the defendant, and of which the plaintiff complains, were libelous per se, and that in the absence of justification the plaintiff is entitled to substantial damages.
Upon the trial of the action now brought up for review the learned trial court charged in harmony with this theory, and these present the only substantial objections urged against the judgment in favor of the plaintiff. We see no reason for changing the views which we expressed upon the former appeal, and the judgment and order appealed from should be affirmed.
The judgment and order appealed from should be affirmed, with costs. All concur, except COCHRANE, J., who dissents on the ground that the court erroneously charged the jury as matter of law that the article constituting the basis of the second cause of action charged the plaintiff with the crime of larceny, and that the articles constituting the basis of the third cause of action charged the plaintiff with the crime of arson.