82 A.D. 513 | N.Y. App. Div. | 1903
The plaintiff has recovered a verdict of $5,000 for a libel in headlines to an article published by the defendant. Thé article, so far as it related to the plaintiff, was substantially true, but the headlines were false in that they stated that the plaintiff was in a cell of a jail. The sheriff had a warrant for the jailing of the plaintiff for a contempt, and although he sought her for several days he could not find her. Before he could execute the warrant he was halted ■by a temporary stay contained in an order to shpw cause why a stay should not be granted to the plaintiff pending her appeal from the judgment which was the basis of the adjudication of contempt.
The plaintiff proved the publication, the circulation of defendant’s newspaper, and rested. Thereupon thé' defendant put in the entire article, proved the receipt of the warrant by the sheriff, his attempts and his failures to execute it, certain other facts not here material, and then read in evidence the various proceedings in the Supreme Court. Thereupon the plaintiff called him who was her former attorney, and proved that originally proceedings were begun against the husband of the plaintiff, which went to judgment in the City Court of Yonkers; that the plaintiff was examined as a third party upon the judgment. before the city judge; that a receiver was appointed; that the plaintiff was ordered to refund moneys received from her husband, and that the order requiring restitution was appealed from and reversed in the Appellate Division of the Supreme Court. I fail to see how this evidence was material. The plaintiff charged the defendant with libel in that it stated that she was confined in a cell for a contempt of the Supreme Court. The defendant proved the adjudication of the Supreme Court, which was in no way based upon the proceedings theretofore had in the City Court of Yonkers, and yet in rebuttal the plaintiff was permitted to give parol testimony of prior proceedings in another court. It cannot be said that such evidence was
The judgment should be reversed and a new trial granted, costs to abide the event.
Bartlett, Woodward and Hirschberg, JJ., concurred; Hooker, J., taking no part.
Judgment and order reversed and new trial granted, costs to abide the event.