11 N.Y.S. 415 | N.Y. Sup. Ct. | 1890
This action was brought to recover damages for slander. The complaint charges, in substance, that the defendant, at various times during the years 1886, 1887, and 1888, charged the plaintiff with being a prostitute and a thief." The answer was a denial. The cause was tried at the Yates circuit before a justice and a jury, in December, 1889, and resulted in a verdict of $3,000 for the plaintiff. A motion for a new trial was made and denied, and the defendant appealed to this court. The plaintiff gave evidence tending to prove the allegations of the complaint. The defendant’s evidence controverted that of the plaintiff. Mason L. Baldwin was sworn as a witness on the part of the plaintiff, and testified that he was a banker, and knew the defendant. The witness was asked the following question: “Has Mr. Enos any children living?” The counsel for the defendant objected. Counsel for plaintiff offered to prove that the defendant was a man of means, and had no one depending on him for support, to which tlie counsel for the defendant objected. The objection was overruled, and exception taken. “ Answer. Ho, I don’t understand he lias any. Question. Has he a wife? A. Yes, sir. Q. Do you know the amount of personal property Mr. Enos •owns? (The counsel for the defendant objected, as being incompetent and immaterial, and not to be taken into consideration in determining the question at issue here before the jury. Received and exception taken.) A. Yes; in the neighborhood. Q. How much? A. In the neighborhood of $50,000.” The witness also testified that the defendant owned a farm of 100 acres. The trial justice, in charging the jury on this subject, said; “In the first place, evidence has been permitted here as to the wealth and standing of the
' The other question objected to was an inquiry as to the wealth of the defendant. The ground of the objection was that the evidence was incompetent and immaterial, and not to be taken into consideration in determining-the question at issue before the jury. The witness was allowed to answer this question after exception, and the evidence showed he had $50,000 of personal property, and a farm of 100 acres. In view of what was said after the question was asked in reference to children, it is difficult to see upon what theory this question was asked, except as bearing upon the question of' damages. Both questions naturally and legitimately bore upon that subject, and the jury were fully informed as to the defendant’s family and property. It is now the rule in this state that, in an action of slander or libel, the pecuniary circumstances of the defendant are not involved in the issue, and evidence showing him t'a be rich or poor is not admissible on the question of damages. Dain v. Wycoff, 7 N. Y. 191-193; Palmer v. Haskins, 28 Barb. 90; Austin v. Bacon, 49 Hun, 386, 3 N. Y. Supp. 587. The trial justice, im his charge to the jury in the portion above quoted, stated that such was the law; but he treated the evidence as proper for another purpose, stating that the jury had a right to know the financial condition and standing of the defendant for the purpose of showing what weight should be given to his-words. It is the general rule that where improper evidence has been received under objection, which may affect the verdict, it is not cured by a direction of the judge to disregard it. Erben v. Lorillard, 19 N. Y. 299; Wright v. Assurance Soc., 41 N. Y. Super. Ct. 1; Allen v. James, 7 Daly, 13; Neuman v.