89 N.Y.S. 263 | N.Y. App. Div. | 1904
The plaintiff herein had a verdict in his favor for six cents dam-? ages. Thereupon he made a motion for a new trial upon the exceptions taken upon the trial, for the insufficiency of the award of damages and for other reasons. This motion haying been denied, this appeal is taken. The complaint avers in substance that in January, 1902, the plaintiff was drawn as a juror upon the trial of Albert T. Patrick, charged in an indictment with murder; that the case was sensational and attracted a great deal of attention throughout the
The defendant in answer to the complaint pleaded a justification of the publication complained of, and as a separate defense that the article was privileged as being a fair and true report of a judicial proceeding, and as a separate and further defense matter in mitigation and reduction of damages.
It is evident that the counsel who tried this case sought to secure results from the jury and, therefore, had little regard for rules of evidence and competency of proof, with the result that the case is filled with numerous and glaring errors which necessitate a reversal of the judgment. We are not required in the disposition which we make of this case to specify all the violations of law which occurred on the trial and which appear in this voluminous record. Direction to some essentially erroneous rulings will answer every requirement.
To establish the defense of justification the defendant called William Travers Jerome as a witness. He testified that he was the district attorney of New York county at the time of the Patrick trial; that during the administration of District Attorney Fellows and prior to the witness’ accession to that office he was an assistant in the office and was called upon to and did make an examination into the charges made against the plaintiff which resulted in the finding of. an indictment against him for forgery; that he had reported against the dismissal of the indictment and that in his judgment it was a perfectly plain case requiring trial. He further testified that he made this statement to Recorder Goff and also told him that in his opinion “the case had been fixed.” To all of this testimony the plaintiff made repeated objection, which was overruled, and to which he took an exception, and also made repeated motions to strike out the testimony, which motions were denied, and to which rulings he took exception. It needs no authority to support the conclusion that this evidence was essentially incompetent. It was mere hearsay and did not rise to ■ the dignity of proof. For a much slighter infringement in a similar case this court reversed a judgment. (Throckmorton v. Evening Post Pub. Co., 27 App. Div. 125.) It was also more vicious than hearsay testimony, for the reason that
The defendant called Robert H. Cartwright as a witness, who testified that he was a reporter for the defendant and was engaged in investigating the record of the plaintiff. In the course of such investigation he Called upon Lawyer House and was permitted to give in evidence the conversation, over the objection and exception of plaintiff, had-with him. Among other things the following transpired : 11Q. Then what did you do? A. Went back to Mr. House and I said-to’ him, ‘ Mr. House, your friend the juror got quite a record as a jail bird, hasn’t he?’ He laughed and said, ‘Where did you pick that up?’ I said I learned it. I said, ‘How serious is this business ? ’ . And he said, ‘ Well, I can’t tell you, I am supposed not to speak about this matter.-’ ‘ Well,’ I said, ‘ For my own protection and safety, is there any fear of a libel suit if that was published ? ’ Mr. Pierce: I object to his answer or his opinion about a libel suit. [Objection overruled. Exception by Mr. Pierce.] A. (Continued): He laughed and said, ‘ I do not think so; I don’t think Mr. Carpenter will bother you.’ Mr-. Pierce: I move that it be stricken out as incompetent. [Motion denied. Exception by Mr. Pierce.] ” ’ This conversation was wholly incompetent, as was also the. opinion expressed by House. Its direct effect was to convey to the minds of the jury that plaintiff was a “ jail bird.;” that the witness wanted to insure bis safety or that of the defendant' in saying so, and then drew out the opinion from Mr. House that the plaintiff’s character was so bad and his record so damaging that
The charge in the article was that the “ Expelled juror is a Rogues’ Gallery man.” The complaint avers that the defendant thereby intended to charge by this language that the plaintiff was and had been an habitual criminal and that his pedigree was in the rogues’ gallery of the police department of the city of New York. In order to constitute justification of this charge the proof in its support must have been as broad as the charge. (Collis v. Press Pub. Co., 68 App. Div. 38.) The court in submitting the case to the jury left it to them to say as a question of fact whether the statement was true or not. The submission in this aspect was unwarranted, as it was conceded both on the trial and in the argument in this court that plaintiff’s picture did not adorn the rogues’ gallery, nor was any record of him found therein. What was found was what purported to be his record at police headquarters in a pigeon hole and in another room. It may be that this record was so closely associated with the rogues’ gallery as to permit of the jury’s finding that even though the charge to that extent was not justified, yet that the plaintiff suffered no damage from it. The court was bound to charge under the proof that the charge as made in the libel in this respect had not been justified by proof as broad as the charge, as this confessedly was the fact. The record found at police headquarters was doubtless admissible in evidence, but it was only so admissible upon the question of malice in the publication. Such record did not prove the facts assumed to be stated therein, and the defendant, in order to justify, was required to give proof of the facts by evidence at first hand. This record was not such evidence; yet it seems to have been received generally upon all the questions in the case. It was erroneous so far as it was used for such enlarged purpose.
Defendant pleaded for a separate and further defense a large number of newspaper articles and clippings published of and concerning the plaintiff- and relating to the charge contained in the article. In addition thereto the defendant was permitted, over the objection and exception of plaintiff, to offer in evidence other newspaper articles not pleaded in the answer; nor otherwise referred
The judgment and order should, therefore, be reversed and a new trial granted, with costs-to the appellant to abide the event.
Van Brunt, P. J.,- O’Brien, McLaughlin and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.