156 N.Y.S. 534 | N.Y. App. Div. | 1915
Lead Opinion
The plaintiff was the editor of the Financial World, a weekly periodical having a circulation of 12,000, published in New York by the Guenther Publishing Company, of which he was the president and treasurer and the owner of a majority of its capital stock; and he brought this action to recover damages for an alleged libel in the September, 1911, issue of the Adventure, a monthly periodical published by the defendant.
We are of opinion that it was error to receive a typewritten record on appeal in Kellogg v. United States to impeach the testimony given by the witness Eberman, for the certified case on appeal was not competent proof of the testimony given by the witness on that trial to impeach his testimony given on the trial of the issues herein.
We are also of opinion that it was error to receive the testimony given by the witness Olcott to the effect that an investigation which he made as special district attorney did not disclose any evidence that the plaintiff was interested in the business of E. S. Dean & Co. other than in handling its advertising, for the reason that it consisted merely of his opinion as to whether a thorough investigation conducted by him into the affairs of E. S. Dean & Co., consisting of the examination of the books of the company and interviewing witnesses and conducting a prosecution against one of the members of the company, showed that the plaintiff was in any manner connected with the company otherwise than in handling its advertising.
The court ruled and instructed the jury that the charge that the plaintiff was a blackmailer was libelous. These rulings
It follows, therefore, that the judgment and order should be reversed and a new trial' granted, with costs to appellant to abide the event.
Clarke, Dowling and Smith, JJ., concurred; Laughlin, J., dissented.
Dissenting Opinion
I agree that the three rulings pointed out in the majority opinion were erroneous; but I am of opinion that due allow
In the spring of the year 1911 the defendant employed one Simon Herzig, who to its knowledge had adopted the name of George Graham Eice, and had served a term in the Elmira Beformatory, another in Auburn State Prison, and another in Sing Sing Prison, and one of the crimes for which he had been convicted, according to an article published by the defendant in another of its magazines on the 22d day of December, 1906, was forgery, to write a series of articles to be published in Adventure, containing an account of his personal experiences, prior to his conviction, in various lines of sport, finance, business and travel, including horse racing, mining and prize fighting in mining camps; and it paid him from $500 to $1,000 for each article. The articles were published under the general heading “ My Adventures With Tour Money.” The article containing the alleged libel was the sixth of the series, and its subheading was “Baw Hide and Wall Street; The Press Agent and the Public’s Money.” The part of the article constituting the alleged libel was entitled, “ The Power of the Public Print.” It was stipulated that the circulation of the September, 1911, issue of Adventure was 117,000. It does not appear when the manuscript for this article was written, but it was delivered to the defendant some time in the month of May, 1911, and the September issue in which it appeared came out in August thereafter.
The article which the defendant thus hired Eice to write and which it published, was clearly libelous per se in that among other things it charged plaintiff with being a blackmailer. (Town Topics Pub. Co. v. Collier, 114 App. Div. 191.) The libelous charges against plaintiff for the most part related to matters which had occurred many years before. The Financial World, of which plaintiff was the editor, had been for years conducting a campaign against fraudulent so-called " Get Eich Quick ” enterprises in which the public had been induced, and were being induced, to invest, and in some of which Bice had been active and the Financial World had exposed him and his criminal record. Eice made no attempt in the libelous
The learned trial court on a fair and impartial charge left all evidence bearing upon plaintiff’s character to the jury, with instructions to consider it in determining the amount of compensatory damages; and the court received all competent evidence offered by defendant in its attempt to justify the charge that plaintiff was a blackmailer. The jury thus had before them the conduct of the plaintiff, which defendant claimed tended to show blackmail in the colloquial sense.
The mere fact that the court erroneously ruled and charged that the libel could not be justified so as to exonerate defendant from all liability on account of the charge of blackmail, without proof of a written threat did not, I think, result in any •material increase in the verdict which counsel for appellant argues for the most part represents punitive damages and that is indicated by questions asked by jurors with respect to why the defendant, which was claiming to stand in the shoes of Eice for the purpose of being accorded the privilege which the law gave him to defend himself against attacks, did not call Eice and whether it refrained from calling him on account of his criminal record. Eegardless of any question with
The testimony of' Olcott was corroborative of that given by the plaintiff, and it bore only on the question as to whether plaintiff’s connection, many years before, with a firm, certain members of which had been prosecuted for swindling operations, was merely in handling their advertising, which he admitted) or whether it extended to a ten per centum interest in the profits as the testimony of one witness for defendant tended to show, which plaintiff denied.
The erroneous admission of the certified transcript of a few lines of testimony to contradict a witness was not, I think, seriously prejudicial.
I, therefore, vote for affirmance.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.