
    Lizzie E. Howell, Respondent, v. Press Publishing Company, Appellant.
    
      Libelous newspaper publication—exhibiting to the jury and discussing a picture in reply to a rema/rk “ you point out one degrading one” — it is not a ground for reversal on appeal.
    
    Where, in an action of libel, based upon a newspaper publication,'the plaintiff’s counsel refers to the defendant’s newspaper as containing pictures of a degrading character, and, upon the defendant’s counsel remarking “you point out one degrading one,” exhibits to the jury a copy of the newspaper which has been offered in evidence; and discusses the pictures appearing therein, the refusal of the court to allow the defendant’s counsel to withdraw a juror because of such discussion, will not be disturbed upon appeal.
    Appeal by the defendant, 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 Sullivan on the 5th day of June, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      John M. Bowers and James W. Gerard, Jr., for the appellant.
    
      T. F. Bush, for the respondent.
   Merwin, J.:

This is an action for libel. The defendant, on January 4, 1898, published in its newspaper, the Few YorTc World, an article concerning the plaintiff and her troubles with her husband, who was. a clergyman. Portions of this article are set out in the complaint, and are claimed to be libelous. Upon this appeal three propositions are presented by the defendant upon which it bases its claim for the reversal of the judgment. These are as follows: (1) The court should have allowed the defendant to withdraw a juror on account of the irrelevant statement and comments made by the counsel for the plaintiff in opening and summing up the case ; (2) the court erred in various rulings upon the admission of evidence; (3) the court' erred in charging the jury that the portion of the article complained of was libelous jper se. It appears that the counsel for the plaintiff, in his opening, said that the defendant had brought the mighty power of the press against this little woman. This the counsel for the defendant objected to. The cqurt said that the opening should be confined to the issues. Then the counsel for plaintiff said that he would state what the pleadings stated, and the pleadings were read to the jury. At the. close of the opening the counsel for defendant asked leave to withdraw a juror on the ground that the counsel in his opening summed the case up and used certain expressions that had no relation or bearing to the case. It does not clearly appear that some of the strongest expressions stated to have been used were in fact used, as they do not appear in that part of the opening which is set out in the record. The court denied the motion of the defendant’s counsel and gave him an exception.

It does not appear that, after the defendant objected, any objectionable remarks were made by the counsel for plaintiff. The pleadings were read to the jury without objection. They contained full and strong statements of the position upon either side. •The motion at the close of the opening to arrest and put off the trial appealed to the discretion of the court. It does not, we think, appear that such discretion was improperly exercised. The trial judge is necessarily in a better position to determine this question than the appellate court can be.

The main objection to the summing up relates to the comments of the counsel for plaintiff in regard to the pictures in the newspaper containing the article sued upon. He referred to the paper as containing pictures of a degrading character. The defendant’s counsel then said, “ You point out one degrading one.” The plaintiff’s counsel then exhibited to the jury the newspaper, apparently the one that was used at the trial in offering in evidence the part sued on, as well as the whole article, and then discussed the pictures that appeared in it. This proceeded for a while, when the defendant’s counsel interrupted and claime'd that nothing but the article was in evidence; that the plaintiff’s counsel had no right to show the jury the paper, and moved to be allowed to withdraw a juror. He also asked the court if there was anything more in evidence than the article. The court replied that the entire paper was in evidence for the purpose of showing the publication of the article. The defendant excepted. That seems to have ended the discussion of the pictures. The summing up proceeded, and at its close another motion was made by the plaintiff’s counsel tó withdraw a juror and this was denied and exception taken.

The defendant, as a part of its case, offered in evidence the entire article. For that purpose evidently the paper itself, was used, and was in evidence for the purpose of showing the publication. The discussion as to the pictures was at the invitation of the defendant’s counsel and cannot now be complained of. The cases holding it to be error to allow counsel in summing up to read from papers not in evidence do not apply.

The denial of the defendant’s motion is not shown to have been erroneous and is not good- ground for reversal. At most it was a matter of discretion which is not shown to have been improperly exercised. The case of People v. Fielding (158 N. Y. 542) is easily distinguished.

We have carefully examined the exceptions to rulings .upon evidence to which our attention has been called, hut we find no good ground for reversal.

The court did not err in charging the jury that the portion of the article complained of was libelous per se. Its tendency was to disgrace the plaintiff and bring her into contempt and ridicule. (Morey v. M. J. Association, 123 N. Y. 207; Shelby v. The Sun Printing Association, 38 Hun, 474, 476; affd., 109 N. Y. 611, on opinion of General Term ; Winchell v. Argus Co., 69 Hun, 354; Perkins v. Mitchell, 31 Barb. 461.)

The foregoing considerations lead to the affirmance of the judgment.

All concurred.

' Judgment and order affirmed, with costs.  