Blohm v. Bamber — 31 N.Y. St. Rep. 816

Majority

p. 816

Charles A. Blohm, Resp’t, v. Isaac Bamber, App’lt.

(City Court of Brooklyn, General Term,

Filed May 26, 1890.)

Headnote

1. Slander—Evidence of apology not admissible unless pleaded.

In an action for slander evidence of an apology is only competent in: mitigation, and to be admissible must be pleaded.

2. Same—Damages—Charge.

It is not error to deny a refusal to charge that a verdict for nominal' damages is a vindication.

Appeal from judgment in favor of plaintiff, entered on verdict, of a jury.

Action for slander. The facts are as follows : An action was brought in the supreme court, in which action Isaac Bamber was plaintiff, and Charles A. Blohm, was defendant. The defendant in that action claimed he was entitled to a credit of $100 for a certain safe and office fixtures, which he alleged he had sold to ■ defendant Bamber.

This was denied by Bamber on the trial, and after the trial, and on coming out of the supreme court, the alleged slanderous words were spoken by Bamber of the plaintiff, and an action was brought thereon in this court.

The slanderous words complained of were “you are a liar;”

p. 817

“you don’t pay your debts; ” “you are a thief,” and “you committed perjury just now.” The defendant admitted the speaking of the words complained of, with the exception of the words “ you are a thief.”

The defendant and Edward Blohm each testify that the plaintiff began the quarrel by calling the defendant “ a damned liar,” “ and. that he had committed perjury.”

The only evidence offered by the plaintiff was his own testimony.

The jury gave a verdict of seventeen hundred and fifty dollars.

Surd & Grim, for resp’t; George V. Brower, for app’lt.

This action was brought to recover damages for slander, and at the trial term a verdict was rendered for plaintiff for the sum of $1,750. FTo appeal was taken from an order denying a motion for a new trial on the minutes, and no such order appears in the case. There is only a statement in the record that the court denied the motion. It follows, therefore, that we can review only questions of law, Code, §§ 999 and 1846, and it also follows that the questions whether the verdict was against the weight of evidence, and whether it was excessive, are not before us for consideration.

It is claimed that it was error not to allow the defendant to prove that he had offered to make an apology to plaintiff. Such testimony was only competent in mitigation, and any fact which might tend to mitigate damages should have been pleaded. When the plaintiff rested, and again at the close of the case, the defendant moved to dismiss, which motions were denied, and we think properly. The request to charge that a verdict for nominal damages was a vindication, is in conflict with the law as decided by the court of appeals. Sanderson v. Caldwell, 45 N. Y., 398 , 406.

The judgment appealed from must be affirmed, with costs.

Osborne, J., concurs.