
    Hobart S. Bird, Respondent, v. Press Publishing Company, Appellant.
    First Department,
    January 3, 1913.
    Libel — article charging attorney at law with inducing witness to leave jurisdiction — evidence — letter asking defendant to retract publiea.cation — self-serving declarations — evidence — effect of publication upon plaintiff’s feelings.
    It is libelous per se to publish of an attorney at law that he advised his client, who was charged with a crime, to pay money to a witness in order to induce him to leave the jurisdiction.
    A verdict of $3,000 for such libel is not excessive.
    A letter written by the plaintiff to a defendant who has published an article libelous per se asking him to retract the same, which he refused to do, is admissible in evidence to show the feeling and intention of the defendant.
    But a letter written by the plaintiff to the defendant not asking for a retraction, but merely containing self-serving declarations and threatening suit, is not admissible against the defendant.
    In an action for such libel the plaintiff may testify as to the effect the publication had upon his feelings.
    Clarke and Dowling, JJ., dissented, with, opinion.
    Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of July, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 5th day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Howard Taylor, for the appellant.
    
      Gilbert E. Roe, for the respondent.
   McLaughlin, J.:

The defendant, on the 15th of September, 1910, published in its newspaper the following article: “Oassira Pennachio, the wife of Attilio Pennachio, a well-to-do banker, at No. 529 Mor- ' ris Avenue, whose examination on a charge of attempting to kill her/husband with a pistol on September 7th, has been postponed from time to time, was not in the Morrisania court when the case was called by Magistrate House today. Her lawyer told the Court that he had heard that the woman had been given money and sent back to Italy. The husband said that his lawyer, Hobart Bird, of No. 320 Grand Street, had told him to take this course. Bird admitted that such was a fact. The Court asked the lawyer to step outside of the rail, and said that he would bring the case to the attention of the Bar Association. The papers will be sent to the District Attorney.”

The plaintiff, claiming that the article so far as it referred to him was libelous, brought this action to recover the damages alleged to have been sustained. He had a verdict of $3,000, and from the judgment entered'thereon and an order denying a motion for a new trial, defendant appeals.

There was no attempt on the part of the defendant to prove the truth or justify that part of the article which stated “the husband said that his lawyer, Hobart Bird, of No. 320 Grand Street, had told him to take this course. . Bird admitted that such was a fact.” The plaintiff is an attorney of this court and the article charged him with the commission of a crime. It was, therefore, libelous per se. • It is a serious- charge to make against an attorney that he has advised a client to pay money to a witness in order that hé may be gotten out of the' jurisdiction of the court. If :he were guilty of the offense charged, then he is unworthy to practice his profession and ought to he disbarred. The falsity of the article being establisted, and there being no evidence offered to justify the publication, defendant, of course, was liable in damages and the verdict rendered certainly cannot be said, upon this record, to be excessive.

We would, therefore, have no hesitancy in affirming the judgment and order appealed from,- except for an error committed at the trial in the reception of evidence. The court received, over defendant’s objection and exception, a letter written by the plaintiff to the defendant subsequent to the publication. In the letter he called attention to the fact that the statement in the article before quoted, referring to him, was false and then set forth at some length self-serving declarations as to the injury which had been done him, and concluded, “I have, of course, only one remedy, faulty and inadequate as. it is, money damages- The right to this I shall assert.” If there had been a request in the letter for a retraction, so much of it at least would have been admissible. "When a publisher is called upon to retract a publication libelous per se, it is his duty to retract the charge as fully and broadly as it has been made and his refusal to do so “ is competent evidence as to the feeling and intention of the publisher with which the libel was published.” (Stokes v. Morning Journal Assn., 72 App. Div. 184.) This seems to be the general rule. (Palmer v. N. Y. News Pub. Co., 31 App. Div. 210; 25 Cyc. 500.)

Here, there was no request in the letter for a retraction. (Bradley v. Cramer, 66 Wis. 297.) What was said would seem to indicate that the plaintiff did not want a retraction, but did want “money damages.” After their relations were thus stated by the plaintiff the fact that the defendant did not thereafter publish a retraction was no evidence whatever of a premeditated wrong in the publication.

It is also urged that the court erred in permitting the plaintiff to testify what effect the publication had upon his feelings. It is at least doubtful whether defendant is in a position to raise this question. When the plaintiff was asked to describe his feelings, defendant’s counsel stated he had no objection to his doing so, but assuming that question was raised by a subsequent motion to strike out, the testimony was clearly admissible. Similar questions were passed upon in Van Ingen v. Star Co. (1 App. Div. 429) and Palmer v. N. Y. News Pub. Co. (supra). In the fonner case Mr. Justice Ingraham, who delivered the opinion of the court, in referring to the question, said: “It is well settled that in determining the amount of damage where a publication is libelous per se, the jury has the right to consider the mental suffering which may have been occasioned to the plaintiff by the publication.” The case was subsequently taken to the Court of Appeals, where the determination of this court was affirmed (157 N. Y. 695) on his opinion. In the latter case, Mr. Justice Rumsey, who delivered the opinion of the court, said: “A publication of a libel which reflects upon the character of a reputable man must necessarily cause him more or less mental suffering and humiliation, and these things are elements of general damages which the jury may take into consideration.” (See, also, 25 Cyc. 533, and authorities cited in note.)

No error was committed in this respect, nor do we find any errors, other than the one pointed out, which call for consideration.

The judgment and order appealed from are, therefore, reversed, with costs to appellant to abide event.

Ingraham, P. J., and Scott, J., concurred; Clarke and Dowling, JJ., dissented.'

Clarke, J. (dissenting):

I dissent. It seems to me that the letter was admissible m evidence for the purpose of showing that the attention -of the defendant had been called to the falsity of the publication and should he treated as in effect a request for retraction.

Irrespective of a request for retraction, I think it the duty of one who has published a libelous statement, which. he subsequently discovers to be false, to right the wrong, so far as he can, without request, and that it is material upon the question of express malice and hence to the amount of damages to show that prior to the commencement of the action he knew that the charge made was unfounded!

As said by Nelson, Ch. J., in Hotchkiss v. Oliphant (2 Hill, 510): “ If the defendant had become satisfied that the charges which he had unwittingly copied were unfounded, common honesty and a decent respect for the rights of the injured party called for an unqualified withdrawal. * "" * A libelous publication may be inadvertently admitted into the columns of a newspaper, and the editor chargeable only with mistake or indifference to the truth; but if, when advised of his error, he hesitates to correct it, the case rises to one of premeditated wrong, of settled and determined malignity towards the party injured, which should be dealt with accordingly. There is no longer room for any indulgence towards the act, and the party becomes a fit object for exemplary punishment.”

The judgment and order appealed from should be affirmed, with costs.

Dowling, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  