
    Matthew Marx, Resp’t, v. The Press Publishing Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 1, 1892.)
    
    1. Appeal—Motion to dismiss complaint.
    In an action for libel, the complaint alleged the article to have been published in the Brooklyn edition of The World. The answer was a general denial, and plaintiff gave evidence to prove that The World was published by defendant At the close of the cace, the record states that defendant’s counsel made “a formal motion to dismiss,” and after all the evidence was in he “ moved to dismiss the complaint on the whole proof.” Held, that the exception to the denial of this motion presen! s no question for review on appeal.
    2. Libel—Malice—Justification.
    Defendant had pleaded (1) that the publication was a fair and true account of a judicial proceeding, and (2) that the statements were true. Defendant asked the court to charge that there was no evidence that defendant was influenced by actual malice in publishing its report of this judicial proceeding if the same was fair and true. The court so charged, other than the justification of the article and its contents. Held, no error.
    3. Same.
    As no request was made to instruct the jury to consider as a fact that the justification was pleaded in good faith and not wantonly, the court could not hold, as a matter of law, that the answer could not be considered to enhance damages.
    
      Appeal from a judgment of the general term of the second judicial department, affirming a judgment entered upon a verdict.
    
      John M. Bowers, for app’lt; A. N. Weller, for resp’t.
    
      
       Affirming 34 St. Rep., 316.
    
   Brown, J.

-—The plaintiff, who is a lawyer, recovered a judgment for damages sustained from an alleged libelous article published by the appellant,' which in substance stated that he had been accused of failing to pay over to a client money received for her.

The appellant asks us to reverse the judgment on two grounds:

First. That there was no proof of publication by the defendant

Second. For error in the charges of the court upon the question, <of actual malice.

The first point is not raised by any appropriate exception in the record. The article was alleged to have been published in the Brooklyn edition of “The World.” There was a general denial in the answer and the plaintiff gave evidence which he claimed tended to prove that “ The World ” was published by the defendant. ■ At the close of the plaintiff’s case the record states that defendant’s counsel made “a formal motion to dismiss,” and after all the evidence was in he “moved to dismiss the complaint on the whole proof.” The exception to the denial of this motion presents no question for review on appeal. If it was intended to claim that the evidence was insufficient to permit the conclusion that defendant was the publisher of “ The World,” that fact should have been stated, and if it had, the objection might have been obviated by further proof.

Upon the other point, it appeared that defendant had pleaded (1) that the publication was. a fair and true account of a judicial proceeding, and (2), that the statements therein contained were true.

The jury have determined that these allegations were not true, and we must examine the exceptions to the refusals to charge in the light of that fact

So far as material to this appeal the requests to charge and the responses of the court were as follows:

“ That there is no evidence in this case that the defendant was influenced by actual malice in publishing -its report "of the judicial proceeding aforesaid, if the same was fair and true.”

The Court: So charged; other than the justification of the article and its contents.

“ That there is. no evidence in this case of actual malice on the part of the defendant."

The Court: So charged; other than the publication of the article.

“ That the. jury would not be justified in awarding the plaintiff exemplary damages.”

The Court: So charged; unless the article is found to -be false and malicious, and published with intent to injure the plaintiff.

. These rulings are sustained by Holmes v. Jones, 121 N. Y., 462; 31 St. Rep., 379; Cruikshank v. Gordon, 118 N. Y., 178; 28 St. Rep., 784; Bergmann v. Jones, 94 N. Y., 52; Samuels v. Evening Mail Assn., 75 id., 604; 9 Him, 294; Distin v. Rose, 69 N. Y., 123.

The appellant cites Cruikshank v. Gordon as authority for the proposition that the jury cannot infer malice from the interposition in good faith of a justification of a libel and an honest endeavor on the trial to establish its truth.

In that case the court charged in relation to justification of the libel that defendant had a right to plead that issue, and if it was inserted in good faith the damages would not be enhanced if they failed to prove it to the satisfaction of the jury. And it was submitted to the jury to find whether it was pleaded wantonly and without cause, with the instruction that if it was, they could consider that an aggravation of damages. That charge was sustained in this court.

But in this case no request was made to instruct the jury to consider as a fact that the justification was pleaded in good faith and not wantonly, and the court could not hold as a matter of law that the answer could not be considered to enhance damages. Distin v. Rose, supra.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  