here upon a former appeal, and in the report thereof found in 12 App. Div. 6 , 42 N. Y. Supp. 933 , the article appears, as well as the opinion then delivered by this court. The answer contains matters in mitigation, and sets out the circumstances attending the publication of the article. The plaintiff read in evidence a letter prepared in behalf of the defendant before the commencement of the action, suggesting that the article was received from the American Press Association, and that it was received by the defendant “as a part of some telegraphic plate matter furnished by the American Press Association, and was delivered to a number of papers in that form.” The letter also stated that the article was printed in an obscure place in the Observer, and contained an averment that it never attracted any notice so as to do the plaintiff any harm. The letter contained the further statement: “But we are always ready to make amends to those who deem themselves injured. We will be pleased to have you submit the matter you speak of. Permit the suggestion, however, that you submit the case to the American Press Association, either New York or Buffalo, and they can put in type and send to their customers—all who published the item—a comprehensive statement covering the whole matter. You will find that newspapers generally mean to be just, and even generous, when an error has been made.” No comprehensive statement covering the whole matter was prepared by the plaintiff and furnished to the defendant in accordance with the letter which the defendant transmitted to the plaintiff. At the time of the publication it appears that the circulation of the defendant was about 6,000, and that principally in Utica and its immediate vicinity, although the defendant had a moderate exchange list. The witness, in speaking of such exchange list, said: “They were very largely in New York state; but few outside. We had very few in Pennsylvania,—less than one-half dozen. We had exchanges with the city of Philadelphia, and also in Borne, Oneida, Syracuse, and New York City.” Upon the trial now brought in review the plaintiff recovered a verdict of $10, and from the judgment entered thereon the plaintiff has taken this appeal. Numerous exceptions were taken by the plaintiff during the trial, and to the charge as made, and to refusals of requests to charge, which are not deemed important to be stated in detail or reviewed in full. During the trial it appeared that numerous actions had been brought by the plaintiff against other parties publishing the article in question.
Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.
S. R. Ten Eyck, for appellant.
Edward H. Wells, for respondent.
Upon the trial the defendant expressly waived all effort to justify the publication of the article mentioned in the complaint. The plaintiff contends that, the jury “had a right to pass upon the good faith of the defendant in interposing the plea of justification.” To establish the defendant’s good faith in making the answer setting up a justification, the defendant called as a witness White, who testified that he visited Rio Janeiro, and made certain investigations in respect to matters mentioned in the article; and in the course of his testimony he stated that on one occasion “we were shown the books containing the expenditures of the company at the time of the organization of the company,—at the time Mr. Palmer was there.” He said he reported what he found to the company in Pennsylvania,—the facts. He was then asked this question: ‘What, if anything, was shown by those books as to the expenditure of the company for the Welsbach light and this gas governor?” This question was objected to as irrelevant and immaterial, and “that it can only be shown by the production of the books themselves.” The court