68 N.Y.S. 1028 | N.Y. App. Div. | 1901
This action is for libel. The defendant, publisher of a newspaper in the city of New York, published an account of the marriage of one Louise Cleary with Eugene Cowles. As part of this
There were several of the plaintiff’s pictures introduced in evidence, and also a picture of the woman who was married to Cowles at the time named. So far as we can see from an inspection of the record, the picture published was as good a representation of one as of the other. It did not purport to be a portrait of the plaintiff, whose stage name was “Mary Louise Clary,” but was said to be a picture of ‘Mrs. Louise Cleary-Cowles.” The plaintiff was not connected with this article except by the picture. Her name does not appear anywhere in the article. The jury had the plaintiff as a witness before them, and an opportunity to compare the picture as published with the plaintiff, and with her published pictures; and, considering the character of this picture contained in the alleged libel, as it appears from the record, with the name annexed to it, as the picture of a person other than the plaintiff, it is difficult to see how any one could have been deceived. The only real question presented is as to some rulings upon questions of evidence. The plaintiff having introduced in evidence several pictures of herself, which had been published and circulated through the country, and also a copy of the libel published, she was asked: “State what, if anything, was said to you in reference to this particular article, Exhibit N, by any person at the time you received it.” This was objected to, the objection was sustained, and the plaintiff excepted. A witness was also called who had sung in concerts and church choirs. He testified that he was slightly acquainted with the plaintiff; that prior to the publication of the libel he had seen the plaintiff’s picture on her literature; and was then asked to look at the article, and state whether or not he recognized any person in it. This was objected to, the objection was sustained, and the plaintiff excepted. The witness was next asked whether “that is a fair picture of the plaintiff or not.” This was also excluded, and the plaintiff excepted. As before mentioned, the publication stated, not that the picture represented the plaintiff, but that it was a picture of another woman of a different
Nor do I think it was error to refuse to admit the photograph of the plaintiff in evidence. The court admitted all the pictures of her that