Alliger v. Mail Printing Ass'n — 47 N.Y. St. Rep. 205

Majority

p. 205

Richard D. Alliger, Resp’t, v. The Mail Printing Association, App’lt.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

New trial—Libel.

In an action for libel in publishing concerning plaintiff that he had heen arrested on a charge of forgery, the plaintiff testified that he had never heen arrested, but the rest of his evidence showed that tnis referred to an arrest aS charged in the article. Held, that a new trial would not he granted on the ground of newly discovered evidence that he had heen arrested in an action of conversion, which had heen voluntarily discontinued, as such evidence could have no bearing on the damages sustained by reason of the libel. <-■

Appeal from order denying motion for new .trial upon the ground of newly discovered evidence.

J. Lindley, for app’lt; B. N. Cardozo, for resp’t.

—This action was brought to recover damages for a libel published by the defendant.

It appears that the defendant in the month of September, 1887, published in the columns of its newspaper a statement that the plaintiff had been arrested in a criminal proceeding on a charge of forgery. Upon the trial of the action no attempt was made by the defendant to justify the libel, and the plaintiff 'recovered a verdict in his favor. Subsequently a motion for new trial was made at special term on the ground that material facts had but lately been brought to the defendant’s knowledge and attention ; it being claimed that upon the trial the plaintiff swore that lie had never been arrested, whereas in fact in 1870 he had been arrested in an action for conversion. But it appeared from the papers submitted upon the motion that this action had been voluntarily discontinued, and that the plaintiff had never paid to the plaintiffs in that action any money in settlement thereof.

Even if had been true that upon the trial of this action the testimon/ had been given by the plaintiff as contended for by the defendant upon this motion, it seems to us it would have been a great stretch of the power of the court to order a new trial upon such facts as are set forth upon the- moving papers. But an examination of the record shows beyond question that no such testimony was given by the plaintiff. When he was asked : “ You were never arrested ? ” the context shows that it was the understanding both of the counsel and the witness that he was never arrested as charged in the defendant’s newspaper. The libel was the charge of arrest. And the witness, after having stated that the libel was repeated in the same paper as the retraction, was asked: “ You were never arrested? A. No.

“ Q. Never guilty of forgery? A. No,” clearly showing that the arrest spoken of related to an arrest for forgery. There would

p. 206

seem, therefore, to be no ground whatever for disturbing the verdict, as the newly discovered evidence could not possibly have any material bearing upon the damages sustained by reason of the libel.

The order should be affirmed, with costs.

O’Brien and Patterson, JJ., concur.