Heyler v. New York News Publishing Co. — 24 N.Y.S. 499

Majority

p. 499

HEYLER v. NEW YORK NEWS PUB. CO.

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

1. Libel—Amending Answer—Discretion op Court.

When an action for libel was called for trial, defendant sought to file an amended answer alleging that a retraction was made three days after the publication of the libelous article. Answer had been filed more than six months, and an amended answer had afterwards been put in on motion. No reason was given for the delay in alleging the retraction, except the unverified statement of counsel that he knew nothing thereof until the day before. Helé, that the refusal to allow the amendment at that time was not an abuse of discretion.

2. Same—Absence op Malice no Defense.

It is no defense to an action for publishing an article charging plaintiff with a crime that the charge was made on information obtained from others without any express malice on the part of defendant.

Appeal from circuit court, Queens county.

Action for libel by Elizabeth Heyler against the New York News Publishing Company. Plaintiff had judgment on the verdict of a jury, from which, and an order denying a motion for a new trial on the minutes, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Myer J. Stein, (W. F. Severance, of counsel,) for appellant.

T. C. Kadien, (Louis J. Grant, of counsel,) for respondent.

The plaintiff recovered a judgment for $1,000 for a libel published by the defendant of and concerning her. She was a married woman, and the article stated, in effect, that she was a single woman, and had had a child, which she strangled to death. The libel was one entirely without excuse or justification if the charge was untrue. The answer did not in direct terms state the truth of the charge, but pleaded that the circumstances under which the child was bom led the public authorities to believe a crime had been committed; that the facts were published without malice, and under the belief that it was true. The alleged libel was published on December 16, 1890. When the case was called for trial in June, 1892, the defendant made an application to amend the amended answer by stating that a retraction had been made on the 19th of December, 1890. Assuming that such a statement was proper in an answer, and that it tended in any way to mitigate the wrong done if a wrong had been done, the trial judge did not' abuse his discretion in denying the application. An answer had been served in November, 1891, and an amended answer had been put in upon motion on the 7th of June, 1892. No reason was

p. 500

given beyond an unverified statement of counsel that he knew nothing of the retraction until the day before the trial. No reversible error is shown by the refusal to permit the amendment on this state of the facts. The defendant knew of the retraction-, and should have pleaded it in time to permit a trial under the usual modes of procedure which are designed to make an issue for the trial. The publication by defendant was proven. The paper of defendant in which it was contained was bought at defendant’s office in Park Bow, and the defendant’s witnesses prove that it was published by the defendant. Upon the merits the verdict is sustained by the proof. The charge was exceedingly injurious, and the jury has said that it was unjustified, and not so far excused but that the plaintiff was entitled to substantial damages. No error was committed on the trial. There are several exceptions taken to rulings on collateral issues and to the judge’s charge and refusal to charge. It was no defense or justification to prove that the charge was made on information obtained from others. It was proven that the article came in as news, and was published without any express malice on the part of the defendant.

The judgment should be affirmed, with costs. All concur.