10 N.Y.S. 421 | N.Y. Sup. Ct. | 1890
In March, 1888, the defendant was the editor and publisher of the Morning News, a newspaper in the city of Jamestown, having a large circulation. The plaintiff is the wife of James H. Ward, to whom she was married in February, 1881. She resided with her husband in Schenectady until they moved to the city of Jamestown, in April, 1886, where they kept an art wall-paper and artists’ supply store at No. 13 West Second street, in the new Allen block. Their residence was at No. 11 of the same block. The
The cause was tried in May, 1889, before the court and a jury, in Mayville, ■Chautauqua county. On the trial the first two articles were read in evidence. That of the 9th of March, headed, “An Outrage,” was offered in evidence by the plaintiff. Its reception was objected to by the defendant because only a portion was set out in the complaint, and that it was not material to the issues. The objection was overruled, and the defendant excepted. The plaintiff also put in evidence the article entitled, “A Weakening Bluff,” published ■on the 12th. The plaintiff offered in evidence the article headed, “We are Seven,” which was objected to on the ground that it was not pertinent to the issues, was hearsay., and was not set out in the complaint. The objections were overruled, the articles admitted, and the defendant’s counsel excepted. The plaintiff was sworn as a witness on her own behalf, and she was asked, “What was your condition of health immediately prior to the publication of these articles?” This was objected to by the defendant on the ground that it was not proper evidence, that no damage could be given for such a cause, and that the plaintiff was not the proper party to recover such damages. The objections were overruled, and the defendant’s counsel excepted. The answer was, “I was able to work from day to day, which I did.” The plaintiff’s counsel then asked, “What was your condition of health after the publication of these articles?” to which the defendant objected on the same ground. She answered, “I was prostrated by the shame and disgrace brought upon me.” The defendant asked to have the answers stricken out, which the court.refused, and the defendant excepted. The plaintiff then rested, and the defendant moved for a dismissal of the complaint on the ground that the
The defendant contends that the court erred in admitting in evidence the articles not set out in full in the complaint; also the one, no part of which was inserted. All the articles were published before the commencement of this action, related to the same subject, and were substantially a repetition of the same charge. They were therefore admissible on the question of malice. Fry v. Bennett, 28 N. Y. 327; Bush v. Prosser, 11 N. Y. 360; Distin v. Rose, 69 N. Y. 124; Bassil v. Elmore, 65 Barb. 627; Gott v. Pulsifer, 122 Mass. 235.
The objection that the action could not be maintained without the joinder of the plaintiff’s husband cannot be sustained. Section 488 of the Code of Civil Procedure provides that the defendant may demur where the defect appears upon the face of the complaint; and section 498 provides that, when such is not the case, the objection may be taken by answer. Section 499 provides that any objection not taken by answer or demurrer is waived. DePuy v. Strong, 37 N. Y. 372; Straus v. Bank, 36 Hun, 451; Spooner v. Railroad Co., 115 N. Y. 22-30, 21 N. E. Rep. 696. The fact that the plaintiff was the wife of James H. Ward appeared on the face of the complaint, and, no objection having been taken by demurrer, it was not available on the trial.
The defendant’s offer to prove the character of the plaintiff in the building in which she lived was properly excluded. It was only available by way of mitigating damages, and should have been pleaded; besides, it is not claimed that the matters sought to be proved were known or believed by the defendant before publication. Hatfield v. Lasher, 81 N. Y. 246; Morey v. Association, 1 N. Y. Supp. 475.
The defendant’s counsel asked the court to charge that the plaintiff could not recover for mental anxiety, etc. This was refused, and the defendant’s counsel excepted. The ruling of the trial court is sustained by the authorities. Hamilton v. Eno, 16 Hun, 599, affirmed 81 N. Y. 116.
The other exceptions have been examined, but require no special comment. Ho errors to the prejudice of the defendant were committed by the trial court, and the judgment must be affirmed. All concur.