By the Court,
Johnson, P. J.
The plaintiffs were engaged in a business in which credit and a character for punctuality were essential, and it is obvious that a communication to their creditors, with whom they were in a habit of dealing, like the one contained in the postscript to the defendant’s letter, was calculated to affect injuriously their character and credit as business men ; and if false, it was libelous. The judge therefore properly refused to nonsuit the plaintiffs, and his charge to the jury was in this respect free from objection. The question of the truth or falsity of the statement was properly submitted to the jury. Malice was inferable if the statement was untrue. The term malice, in a legal sense, means a wrongful act done intentionally, without just cause or excuse.
I find no difficulty in sustaining any of the rulings at the circuit, unless it be that admitting evidence as to the pecuniary circumstances of the defendant. The objection was general, to any evidence showing the pecuniary circumstances of the defendant. The plaintiffs were not called upon to state the particular object of introducing the evidence; and if it was pertinent or competent for any purpose, the ruling should be sustained. The question then arises, is evidence of the pecuniary circumstances and standing of the defendant in the community, admissible as evidence in actions of this character, for any purpose ? In a case recently decided in the court of appeals, (Dain v. Wycoff, 3 Selden, 191,) Gardiner, justice, seems to be clearly *256of opinion that such evidence is incompetent. He remarks that it has been the custom at the circuit to admit evidence of this character, but that he could discover no authority for the practice in the elementary books. On this point, however, the other judges expressed no opinion, and the case was decided upon another ground. This point was not, therefore, decided, and however persuasive the opinion of the learned judge may be, and it is certainly entitled to great consideration in the discussion of the question, it still remains to be determined whether the ruling of the learned justice upon the trial is sanctioned by authority, as well as by usage at the circuit. Dain v. Wycoff was an action for seduction. In Myers v. Malcolm, (6 Hill, 292,) which was an action to recover damages occasioned by the explosion of gunpowder, it was held that such evidence was inadmissible ; but the decision was put upon the ground that in that case the plaintiff was entitled to recover no more damages than he had actually sustained. There can be no doubt that the decision was right in that case, as the plaintiff was limited in his recovery to the actual loss and injury he had sustained, and the character or standing of the defendant was in no way involved in the subject matter of the litigation. But that decision does not control this case, because here, whatever may be said in regard to the right to recover punitory or vindictive damages, it is clear that the plaintiffs, if they could recover at all, could recover not only for the injury done to their credit, but for the injury and mortification to their feelings, and their dishonor in business engagements.
Greenleaf, in his able treatise on the law of evidence, while he denies the right of a plaintiff to recover damages inflicted ' merely as a punishment upon the defendant by way of example, .independently of the injury to the mind, body or estate of the plaintiff, and in that sense punitory, yet admits that wherever the defendant’s rank,- wealth or influence in society would naturally tend to aggravate the injury complained of and increase its extent, evidence of such facts is pertinent to the issue. (2 Greenleaf's Ev. §§ 269, 89.) And he puts the cases of ac^ tians of slander and seduction, and the like, as those in which *257the character of the parties is necessarily involved in the nature of the action. But this evidence, he insists, is proper by way of showing the extent of the injury, and not for the purpose of establishing the defendant’s ability to pay. It has been decided, both in Massachusetts and Connecticut, that the ability and standing of a defendant were material facts, to be taken into account in estimating the injury in an action of slander. (Bennett v. Hyde, 6 Conn. R. 24, 27. Shute v. Barrett, 7 Pick. 86. Reed v. Davis, 4 Id. 216.) In Bull. N. P. 13, it is laid down that evidence of the circumstances of the defendant is admissible, in order to increase the damages. This is cited in Phillips’ Evidence without disapprobation. (2 Phil. Ev., C. Hill’s ed. 258.) It seems to me therefore clear, from authority, that the evidence was properly admitted, as bearing upon the extent of the injury, if for no other purpose. It is apparent that a statement of this kind, coming from a banker of wealth, whose solvency was unquestioned, would operate far more extensively and injuriously than the same statement from a less responsible and less influential source. I do not see that the question of vindictive damages, or smart money, by way of example or of punishment to the defendant merely, is raised by the case. Nothing was said upon the subject in the course of the trial, or by the justice in his charge to the jury, and no request seems to have been made to him to charge one way or another upon the subject. Whatever may be the rule in respect to vindictive damages as distinguishable from damages compensatory in their character, it has never been denied, that I am aware of, that, in actions of libel and slander, a plaintiff is entitled to recover not only for the injury done to his estate, but to his character, his feelings, his bodily health, and other injuries of that description, which are nevertheless real and actual because indefinite. Damages for injuries of this description may fairly be regarded as compensatory in their character. And there is nothing in this case, unless it be the amount of the verdict, to show that the jury added any thing by way of punishment and example merely. It may well be that they, finding as they must have done, that the defendant delayed the remittance in consequence of his own *258necessities and not by reason of the loches of the plaintiffs, would conclude that the plaintiffs would feel an imputation upon their credit from such a quarter, and under such circumstances, much more keenly than they would one made under different circumstances, equally false; and that all the damages awarded were by way of compensation alone. The amount of the verdict does not necessarily determine the basis upon which the jury placed their estimate. It is clear, I think, that the communication did not belong to the privileged class. It was wholly voluntary on the part of the defendant. He was not required to make any apology for the delay, but if he undertook voluntarily to do so, he was bound to state the case truly. The fact of the payment of the note by the plaintiffs was the principal subject'of controversy upon the trial, and there was conflicting evidence, which was fairly submitted to the jury, and the verdict cannot be interfered with for want of evidence to support it.
[Monroe General Term,
March 5, 1855.
Johnson, Welles and T. R. Strong, Justices.]
The verdict is certainly large, and I should have been better satisfied with it had it been less ; but the court cannot set it aside on that ground, without unwarrantably invading the province of the jury. A new trial must therefore be denied.