151 N.Y.S. 332 | N.Y. App. Div. | 1915
The verdict is so clearly against the evidence that it is unnecessary to consider the exceptions taken upon the trial.
The plaintiff is carrying on a banking business in the village of Waverly. There is also another bank there. The defendant is a lawyer and the editor of a paper in the village. The plaintiff had a mortgage upon the Tioga Hotel in the village for $6,000, the hotel being insured for about $12,000. Some of the policies were for the benefit of the mortgagee. The mortgage covered other real estate worth from $3,000 to $4,000. The first article, in substance, charged that traffic in liquor was being carried on in the hotel under a license issued to a man who had been dead two years, and that the place had been kept open in order to protect the mortgage, and that it was done against the wishes of the owner, who did not want a license in this place, and did not want it continued in the manner in which it is being run. The only fair and reasonable intent and meaning of the article is a charge that the plaintiff was causing this business to be carried on in violation of law. The next article related to the burning of the hotel, which took place after the publication of the first article. If it meant anything, and was not the utterance of a man who did not know what he was talking about, it intended to charge and could only be understood as charging that the plaintiff had burned the hotel, or caused it to be burned, in order to get the insurance money. Another article, if understood by the man who wrote it, and as it must have been understood by those who read it, charged the bank with stealing from the defendant $100. It was accompanied by a statement that he had deposited $100 with the bank to the credit of his paper, the Waverly Free Press-Record, which had not been credited upon the bank book, and that afterwards the bank reported that his account was overdrawn. He claimed otherwise, and the bank wrote
The defendant was not sworn as a witness, and it did not appear that he believed any of the statements were true. This evidence from a witness is uncontradicted; “he [defendant] said: I am going to bust the bank,’ and I said ‘what is your object in busting the bank,’ and he said ‘ if I do I will start one oí my own. ’ ” This last statement furnishes the only reasonable expía
All concurred.
Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event. The court disapproves of the finding that the defendant did not libel and slander the plaintiff and that the plaintiff is not entitled to recover damages therefor.