Majority
p. 68Elizabeth Heyler, Resp’t, v. The New York News Publishing Co., App’lt. (Supreme Court, General Term, Second Department, Filed July 28, 1893.)
Headnote
1. Libel—Pleading—Retraction.It is not reversible error to refuse to permit an amendment on trial of an answer in an action for libel by alleging a retraction, where the answer has already been amended, and no reason for not having alleged it is given except an unverified statement of counsel that he knew nothing of the retraction until the day before.
2. Same—Justification.
It is no defense or justification to prove that the libelous charge was made on information obtained from others.
Appeal from judgment in favor of plaintiff for $1,000 in an action of libel.
Myer J. Stein and Wales F. Severance, for app’lt; Thomas C. Kadien (Louis J. Grant, of counsel), for resp’t.
The plaintiff recovered a judgment for one thousand dollars 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
p. 69
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 born 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 bad been put in upon motion on the 7th of June, 1892. No reason was 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 Eow 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.
Dykman and Pratt, JJ., concur.