
    Ernest Jesper, App’lt, v. Press Publishing Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    Appeal—Error not cured.
    Error in submitting the question whether a publication was a libel, and in refusing to charge that it was libelous on. its face, is not cured by a verdict in favor of appellant. z
    Appeal from a judgment in favor of .plaintiff, and from an order denying a motion for a new trial.
    
      A. W. Tenney, for app’lt; Platt & Boivers (John 1L Bowers and Julian 0. Buchley, of counsel), for resp’i
   Cullen, J.

This is an appeal by the plaintiff from a judgment in his favor, entered on the verdict of a jury. The action was for libel, and the plaintiff recovered §250 damages. The plaintiff claims that the court at circuit erred in submitting to the jury the question whether the publication was a libel, and in refusing to" charge that the publication was libellous on its face. We think this claim correct, and that the learned trial court erred in refusing to charge as requested. The article complained of was in no sense a report of a judicial proceeding, but a charge that the plaintiff had committed an unprovoked assault on one Klotz, causing his death. The charge was none the less a libel because it narrated an alleged assault. To sustain a defense of justification, it would be necessary to prove, not-that the offense was alleged, but that it was committed. Moore v. Francis, 121 N. Y. 199; 30 St. Rep. 467; Townsh. Sland. and L. ,(4th ed.) § 281. Therefore, it was also an error to charge that, if the article simply stated that the plaintiff was charged with crime, the defendant was entitled to a verdict. The most debatable question is whether these errors were cured by the verdict, the jury having found for the plaintiff. The rule is that the respondent, to uphold the verdict, must show that the errors complained of could not have affected it. Greene v. White, 37 N. Y. 405. In this case it plainly did not affect the verdict, so far as the question of the liability of the defendant is concerned, for the jury has found that the publication was a libel. But the question remains whether this error may have affected the measure of damages. Were this an action for personal injuries, or injuries to property, ordinarily the question of the right to recover would in no wise be related to the amount of-the recovery. But in an action of this kind, unless ■special damages are alleged, no proof is given of actual damage. The law assumes damages from the publication of the libel, and the amount of damage depends on the character and severity of the libel. In such a case we cannot say that the jury might not have given less damages for a publication, the interpretation of which the court held doubtful, than it would have given had the court charged the publication a libel, as a matter of law.

The judgment and order denying a new trial should be reversed and a new trial ordered; costs to abide the event.

All concur.  