Wendt v. Craig — 45 N.Y. St. Rep. 23

Majority

p. 23

Margaret M. Wendt, Resp’t, v. Patrick Craig, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Slander—Damages.

A verdict for $2,500 in an action for slander imputing unchastity to a female, and that she kept a disorderly house, is not excessive.

■S. Same—Evidence—Credibility op witness.

A witness had made a charge of assault against defendant, but had withdrawn the charge on the ground that it had been made through fear. The withdrawal having been produced to impeach her testimony, she testified that the withdrawal was made through fear. Reid, that the court properly called the jury’s attention to the fact that the withdrawal contained no denial of the charge made, especially as defendant’s counsel had stated that the facts stated in the complaint were entirely contradicted by the withdrawal.

3. Same—Comments op counsel.

Where there was proof that defendant turned his mother-in-law out of his house, which he denied, but left it an open question whether she had left his house on the night in question, and it appears that she was at plaintiff’s house after midnight on that night, it is not reversible error that plaintiff's counsel in summing up stated that he had turned his mother-in-law out of doors.

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

Van Wych Hewlett (A. H. Weller and Daniel Brown, of counsel), for app’lt; J. M. & T. B. Seaman, for resp’t.

This action is brought to recover damages for a verbal slander. The words alleged to have been uttered by the ■defendant impute unchastity to the plaintiff, and also include a charge of keeping a disorderly house. The jury rendered a verdict for $2,500. The verdict is not so excessive as to call for a reversal on that account, if the cause of action be proven. The plaintiff is a woman conducting two separate businesses. One was .a hotel at Far Rockaway, called “ The Star of the Sea,” and the other was a restaurant at Far Rockaway beach. Between eleven .and twelve o’clock at night defendant forced open the door of a room in the restaurant where the plaintiff, her daughter and hired .girl were sleeping. He charged the plaintiff with being morally bad and with keeping a bad place there and at the hotel.

There is no justification of the charge and no attempt to prove the same in mitigation of damages. Assuming a deliberate, wanton, false charge against the plaintiff which affected her personally :and her business as well, an appellate court cannot characterize the verdict as excessive.

It appeared on the trial that the hired girl, Lizzie Flynn, had made a charge of a personal assault upon her on the night in

p. 24

question, before a justice of the peace. She subsequently withdrew the charge and testified in the written withdrawal that she had made the charge through fear. On the trial she testified that she made the withdrawal of the charge through fear. The court called the attention of the jury to "the fact that the withdrawal was-put in evidence before them to impeach the testimony of Miss-Flynn. That there was no denial of the assault contained in it, but only that she had made the complaint through fear and wished to withdraw it. There is no fact sworn to on the trial or in the complaint before the justice which is withdrawn by the withdrawal paper.

The court was justified in calling the attention of the jury to this fact, especially as the defendant’s counsel stated to the court and jury that the facts stated in the complaint were entirely and absolutely contradicted by the withdrawal. The fact was not so.

There was proof on the trial tending to show that defendant had turned his mother-in-law out of his house, and upon cross-examination of the defendant he was questioned as to the fact. The examination was not objected to, and the defendant denied the fact, but so as to leave the fact whether or not she had left his, defendant’s, house, on the night in question," an open one.

It was subsequently proven that on the night in question the defendant’s mother-in-law was at plaintiff’s house after midnight. Under this state of the evidence it is not proper to reverse this-judgment because, in the summing up, plaintiff’s counsel stated that defendant turned his mother-in-law out of doors. Defendant’s credibility as a witness was on issue before the jury.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.