31 N.Y.S. 947 | N.Y. Sup. Ct. | 1894
The defendant is a corporation, and is the publisher of a newspaper in the city of Eochester, known as the Union and Advertiser. This action was brought to recover damages for an alleged libelous article published by the defendant of and concerning the plaintiff. The mayor of the city of Eochester,' after the passage of chapter 354, Laws 1883, entitled “An act to regulate and improve the civil service of the state of New York,” as amended by chapter 410, Laws 1884, appointed a board of examiners of applicants for admission into the civil service of the city, and he promulgated rules and regulations for the government of such examinations, with a view of ascertaining the fitness and qualifications of applicants for admission into such service. The plaintiff was an applicant for the position of investigating clerk in the city attorney’s department of said city. The position was one coming within the civil-service rules, and, with the view of being permitted to take such examination, the plaintiff made a written application to the said board in the form and manner prescribed in such cases, which he duly verified before a commissioner of deeds of said city. He, among other things, stated in the application that he resided in the city of Eochester, and had resided in that city continuously for over four years, and that he had not been arrested upon a criminal charge. He was examined by the board, and was duly certified to be qualified to
Section 96 of the Penal Code provides that:
“A person who swears * * * that any * * * declaration, * * * certificate, affidavit, or other writing by him subscribed is true * * * upon any hearing or inquiry, or on any occasion where an oath is required by law, or is necessary * * * for the ends of public justice * * * and who * * * on such hearing, inquiry or other occasion willfully and knowingly testifies, declares, deposes or certifies falsely in any material matter, or states in his testimony, declaration, deposition, affidavit or certificate any material matter to be true which he knows to be false, is guilty of perjury.”
If this section does not reach the case, does section 843 of the Code of Civil Procedure, which is as follows:
“Where an officer, person, board or committee has been heretofore or is hereafter authorized by law to take or hear testimony, or to hear or receive an affidavit or to take a deposition in relation to a matter concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee may administer an oath for that purpose. Where an officer, person, board or committee to whom or to which application is made to do an act in an official capacity requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.”
The plaintiff’s verdict was for $1,750. The defendant’s counsel contends that it was, in any event, excessive, and should be set aside for that reason. It was, in view of all the facts, a large verdict, but not so excessive as to justify us in setting it aside for that reason. We put our decision upon the ground of the error in excluding from the consideration of the jury the defense of justification. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.