
    Benjamin F. Parrish, Appellant, v. The Sun Printing and Publishing Association, Respondent.
    
      Libel — oml admissions and withdrawals of defenses by the defendant — right to open and close, how affected thereby—pi'oof of damage still rests with the plaintiff.
    The pomplaint in an action for libel charged actual malice, while the answer, admitting the publication, denied every other allegation of the complaint and pleaded justification and matter in mitigation. Upon the opening of the trial the defendant’s counsel stated orally that he withdrew the general denial, admitted the publication and stood upon justification, privilege and mitigation, and thereupon demanded the right to open and to close. It appeared from a colloquy then had that he did not admit actual malice. The answer was not amended, but the court granted his application.
    
      Meld, that this was erroneous;
    That the right to open and to close was a substantial right, which, if improperly denied to the plaintiff, would necessitate a new trial;
    That as the complaint claimed exemplary damages, and as the defendant, even after the statement of his counsel, still denied that any damages whatever had resulted, and as the answer still contained matter in mitigation, the plaintiff held the affirmative upon the question of damages, and was also entitled to show actual malice, if he was able to make the proof;
    That as the plaintiff was a physician, he had a right to show, as a part of his own case and in the first instance, the nature of his profession and the circumstances which surrounded him, as bearing upon the hurtful tendency of the libel and the general damage to which he had been exposed;
    
      That the question as to which party was entitled to the affirmative should have ■ been determined upon the pleadings and not upon oral admissions or oral withdrawals, made upon the trial.
    Appeal by the plaintiff, Benjamin F. Parrish, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered in the office of the cleric of said court on the 11th day of June, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of May, 1895, denying the plaintiff’s motion for- a new trial made upon the minutes.
    
      W. A. Purrington, for the appellant.
    
      Franklin Bartlett, for the respondent.
   Barrett, J.:

This is an action for libel. The complaint set out the publication , of the alleged libelous articles with appropriate innuendoes. It ■ averred that the article first published was wantonly, wickedly and maliciously contrived and intended to injure the plaintiff in his good name, fame and credit, and that it was wantonly and maliciously false; as to the second article, it averred that its statements were deliberately and maliciously published concerning the plaintiff by the defendant, contriving to injure him in his profession as a physician. He demanded $50,000 damages. The defendant admitted the pub.lication of the articles, but denied each and every other allegation- in the complaint. It also pleaded justification and matter in mitigation.

Upon the opening of the trial the defendant’s counsel made the following statement: “ If your Honor please, I withdraw my gen- . eral denial, admit the publication of the article, and stand on justification and privilege and mitigation, and ask for the opening and closing.”

A colloquy thereupon ensued between counsel and the trial judge. The defendant’s counsel claimed, first, that the defendant had the absolute right to open and close; sepond, that, if it had not, it was' a matter of discretion, and that that discretion should be exercised in ■favor of the defendant. The plaintiff’s counsel stated that he under-' stood that, in withdrawing the denials, actual malice was admitted. The defendant’s counsel replied that he did not understand what the plaintiff’s counsel understood. It is apparent from the entire colloquy that the defendant meant to withdraw only the denial of that malice which the law implies from the publication, and that it had. no intention of withdrawing its denial of actual malice. The answer was not amended and the withdrawal was not reduced to writing. It would, indeed, have been impossible for the defendant seriously to present its other defenses in the face of such an admission as that of express malice. The case was tried throughout upon the assumption that there ivas no such admission, and that the defendant was-chargeable only with implied malice.

The learned trial judge, however, against' the plaintiff’s objection and exception, granted the application and gave the defendant, the opening and the close. This, we think, was error. ■ It is now well settled in this State that, upon" a jury trial, the right in question is substantial and that its erroneous denial constitutes reversible error.. It is a legal right not resting in the discretion of the trial judge. (Millerd v. Thorn, 56 N. Y. 402; The Lake Ontario Nat. Bank v. Judson, 122 id. 278.)

Notwithstanding the withdrawal of the denials and assuming that, the answer was thus effectively amended, the affirmative was with the plaintiff. Nothing could change this short of an admission that "the plain tiff’s damages were fully $50,000, and that the verdict, if in his favor, should be for that precise sum. The retention in the-answer of matter in mitigation, completely negatived the oral "withdrawal of" the denials on this crucial head. There was throughout, an issue as to the amount of the plaintiff’s damages. Such damages. Were certainly not conceded.. The affirmative with regard thereto was upon the plaintiff. He had a right to prove expiress malice if he could. ' He also had a right to show the nature of his profession and the circumstances' which surrounded him, as bearing on the hurtful tendency of the libel, and the general damage to which he was exposed. (Morey v. M. J. Assn., 123 N. Y. 210.) Even if the ' plaintiff had stood upon the implied malice legally resulting from the publication, the affirmative would still have been upon Mm. It may safely be asserted that in all cases where exemplary damages; are allowable, the affirmative is upon the plaintiff. The damages are part and parcel of the plaintiff’s case. They are interwoven with the wrong presented for redress. The plaintiff must make out. every element of his case. He may make out the element of damage by proof of express malice or by resting upon the implication of malice. In either case the affirmative is upon him. Where the libel is admitted, the plaintiff must still go to the jury upon the-question of damages. Suppose the defendant here, after securing the affirmative, had itself rested without putting in any evidence, would the court have directed a verdict for the plaintiff ? Not at all. The court would have been required to submit to the jury the question of damages. Tinder the ruling made the plaintiff would have first addressed the jury and the defendant would have closed the debate. Thus the defendant would have reversed the natural order of things, and without conceding the damages- would.- have secured the affirmative on that head.

Now, although the defendant did put in some evidence, that improper advantage is precisely what it secured by the ruling complained of. It had the last word upon the quwndum of damages. That last word was potential, as is strikingly evidenced by the verdict, which was for but six cents. Clearly the plaintiff was thus prejudiced by the court’s, reversal of the normal rule in this class of cases. We have never before known of a departure from this rule, and the authorities which maintain it are numerous and uniform. (Fry v. Bennett, 3 Bosw. 232; 28 N. Y. 324; Tallmadge v. Press Pub. Co., 39 N. Y. St. Repr. 29; 131 N. Y. 565; Littlejohn v. Greeley, 13 Abb. Pr. 45 ; Huntington v. Conkey, 33 Barb. 221; citing Carter v. Jones, 6 Carr. & Payne, 64; Opdyke v. Weed 18 Abb. Pr. 223, note; Hecker v. Hopkins, 16 id. 301, note.)

Then too the question should have been determined upon the pleadings as they stood (Lake Ontario Nat. Bank v. Judson, supra, 284; Kobbe v. Price, 14 Hun, 55) and not upon admissions or oral withdrawals made in medias res for the purpose of suddenly shifting the affirmative and thus securing the advantage of the last word to the jury. Such admissions usually result, as they did here, in leaving their full and exact scope in' a state of uncertainty. The rights of the parties should be determined upon precise and well-formulated issues settled before they come to trial, and not upon a mere colloquy from which the trial judge must, on the spur of the moment, glean, as best he may, the legal effect of what is said and of what is, perhaps, adroitly left unsaid.

The case of Mead v. Shea (92 N. Y. 122) has no application for the reason that the question here was disposed of at the opening of the case upon the defendant’s application. The plaintiff then took his exception, and he was then deprived of the right to open the case and to put in such evidence as he may have had. The question in Mead v. Shea was raised only towards the close of the evidence. It was raised there by the defendant’s request, which was denied. The court held that, when this request was made, there was an issue undisposed of, upon which the plaintiff held the affirmative, and as to which he had the right to close. The ruling was, therefore, sustained. Even if the plaintiff here had been given the close, it would not have cured the error of denying him the opening, and the right then to put in testimony upon the question -of damages. But the right to close was distinctly' denied him at the commencement of the trial, and he was not hound to ask a reversal of the ruling at any other stage of the case.

There are other and serious questions presented by the record, but it will not be necessary to consider them, as, because of the fundamental error which we have pointed out, there must he a new trial.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, B. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to abide event.  