
    John L. Morey, Jr., Resp’t, v. The Morning Journal Association, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Libel—What charge libelous per be as to married man.
    A published statement that a married man is threatened with a suit for a breach of promise to marry is an imputation not only of the violation of nis marital relations but of a disregard by him of the recognized proprieties of society which would tend to bring him into disrespect in the community where he resides and is known, and is libelous per se.
    
    2. Same—Extrinsic facts—When unimportant.
    The extrinsic fact that the plaintiff was a married man was properly alleged and proved to give to the charge, or aggravate its defamatory character, and except as bearing upon the question of malice, knowledge on the part of the defendant of such fact was not important.
    3. Same—What fact mat be proved without being pleaded.
    The defendant in an action for libel may yet, as before the Code, without pleading them, prove circumstances tending to repel the presumption of malice in fact when they do not tend to prove the truth of the charge. And when they do so they, since the Code, may, if pleaded, be proved by way of mitigation.
    4. Same—What may be proved on question of malice.
    Upon the question of malice the evidence of the retraction by the de fendant was properly received.
    5. Same—What mat be proved in mitigation.
    The circumstances which induced the correspondent of a newspaper to furnish the libelous article to the defendant and which were unknown to the latter, were not competent in evidence.
    8. Same—Purpose of evidence of mitigating circumstances.
    The purpose of evidence of mitigating circumstances is to disprove malice on the part of the defendant, and by that means mitigate the damages.
    Appeal from judgment entered on verdict of Monroe circuit, and from an order denying motion made on the minutes for a new trial.
    The action is for alleged libel founded upon the publication October 20, 1884, by the defendant in its newspaper published in the city of New York the following to-wit:
    “Refuses to be Reconciled.
    
      A Rochester society belle who insists upon being married. —Special to the Morning Journal.
    
    Rochester, N. Y., October 19.
    Upper tendom is highly excited over a threatened breach of promise suit against John Morey, Jr., a stockholder in the Union and Advertiser, and prominent in society circles. A prominent society belle will be plaintiff in the action. Morey and his friends are moving to effect a reconciliation, but the young lady insists on his marrying her.”
    The plaintiff alleged in his complaint that at the time of the publication he was and had for a long time been a married man having a family residing with him in the city of Rochester. And it appeared by the evidence that he had been so situated for about seven years preceding the time of the publication. The plaintiff recovered $1,000.
    
      John M. Davy, for app’lt; Thomas Raines, for resp’t.
   Bradley, J.

The charge contained in the publication was treated by the allegations of the complaint, and by the proofs on the part of the plaintiff, as libelous per se. The defendant’s counsel upon the ground that it was not so, moved to dismiss the complaint at the outset of the trial, and for a nonsuit at the close of the evidence on the part of the plaintiff, and took exceptions to the denial of the motions. It is quite apparent that a charge of the character of that in question against a married man would be an imputation not only of violation of his marital relation, but of a disregard by him of the recognized proprieties of society, which would tend to bring him into disrespect in. the community where he resided and was known. And in view of the fact alleged and proved that the plaintiff was and had been for a number of years a married man having a family, the article so published was a reflection on his character which would tend to expose him to obloquy, ridicule or disgrace, and therefore is presumed to be defamatory and is libelous per se.

It is, however, contended by the defendant’s counsel that the fact that the plaintiff was a married man was not legitimately in the allegation of the complaint or in the proof, and objection and exception was taken to the reception of the evidence in that respect. And the reason to support this contention is that such fact was not the article published, and that it does not appear to have been within the knowledge of the publisher of the defendant's newspaper. The complaint is not that the article was published of or concerning the plaintiff in his profession or business, but that the imputation is against him personally in his relation of citizen and member of society, and he seeks redress for its consequences against him in such relation. And they may depend upon or be materially affected by circumstances. The extrinsic fact that he was a married man was properly alleged and proved to give to the charge, or aggravate its defamatory character, and except as bearing upon the question of malice, knowledge on the part of the defendant of such fact has no essential importance.

The apparent as well as the real relation was that of a married man. And a rule would be quite remarkable which would afford immunity to the publication of a charge; the defamatory character of which depended upon such relation, unless the plaintiff should make it appear by evidence that the defendant had knowledge that he was a husband and head of a family. The cases cited do not support that proposition.

In Smith v. Ashley (11 Met., 367) it was held that when the publisher believes the article published to be a fictitious narrative or fancy sketch referring to no one, he is not-liable, although the writer of the article may have intended to apply it to the party who brings the action, and it is a libel for which the writer would be liable to him. The effect of that holding was that where the nature of the article is such that the publication cannot be known to be defamatory by the publisher, he is not liable. And in a later case in the same state in which that case was cited by counsel, it wras held that the publication of a libel is not excused by the publisher’s ignorance that it contains libelous matter. Curtis v. Mussey, 6 Gray, 261. In Caldwell v. Raymond (2 Abb., 193) the matter alleged as libelous and set out in the complaint imported nothing defamatory, or anything which could be characterized in any view as such, and there was no averment of the extrinsic fact which rendered it so.

The court upon that ground properly sustained the demurrer to the complaint. And then citing Smith v. Ashley, proceeded to hold that it was neccessary, not only to allege, but to prove knowledge of such extrinsic fact, and announced the proposition that the publisher is not liable when he is not shown and cannot be presumed to have known that the article was intended to bear an injurious meaning.” It is unnecssary to qualify that somewhat indefinite proposition in its application to that case for the purpose of the question under consideration in the case at bar. The fact that the plaintiff was a married man was patent, and appparently open to observation, and as may be presumed, was within the common knowledge of the community where he resided. Information of the fact, if not possessed by the publisher, required only reasonable care or diligence to furnish it. And in view of the apparent, import of the imputation against him as a married man, ignorance of such relation is justly attributable to negligence.

The exceptions before mentioned were not well taken.

The defendant in an action for libel, may yet, as before the Code, without pleading them, prove circumstances tending to repel the presumption of malice, in fact when they do not tend to prove the truth of the charge. And when they do so, they, since the Code, may, if pleaded, be proved by way of mitigation. Bush v. Prosser, 11 N. Y., 347; Willover v. Hill, 72 id., 36.

Upon the question of malice, the evidence of the retraction by the defendant was properly received. Samuels v. The Evening Mail Association, 6 Hun, 5.

But it is not seen how the comments contained in the issue of the Union and Advertiser,” in which the retraction was published were competent evidence, as it does not appear that the plaintiff had anything to do with their production or insertion in the paper, and his relation to that newspaper was not such as to afford the presumption that he had. The published communication was sent to the defendant by its correspondent in Rochester, by whom, as a witness, the defendant offered to prove that when he prepared the article, he had information that an action had been commenced by a woman against John E. Morey, Jr., for breach of promise, also where he obtained this item of news, but did not propose to prove that this information was communicated to the defendant otherwise than in the article sent to and published by the defendant.

The evidence so offered was properly excluded, as the-circumstances which induced the correspondent to furnish the article to the defendant unknown to the latter could not have influenced the publication by it. It is, therefore,, unnecessary to inquire whether the allegations in the answer were sufficient to justify the introduction of the evidence so offered, as may have been required if the offer had embraced the purpose to prove that such information so received by the correspondent had been given to the-defendant.

The defendant’s counsel offered to prove that about the time, and before the article was prepared by the correspondent, an action was commenced by a woman named, against John E. Morey, for breach of promise; that the-name of the defendant in the summons in that action was not John E. Morey, Jr. ; that the action was afterwards settled; that this information was received by the correspondent before he sent the article to the defendant. And to the exclusion of the evidence exception was taken. This evidence was offered in mitigation. And there was no purpose indicated to prove that the defendant had any information of those facts at the time of the publication,, and on that ground expressly stated, the evidence was excluded by the court.

The purpose of evidence of mitigating circumstances is to disprove malice on the part of the defendant, and by that means mitigate the damages, which could not be pertinent for that purpose unless the action of the defendant-in making the publication was, to some extent, in good faith influenced by knowledge of such circumstances. Hatfield v. Lasher, 81 N. Y., 246. This was a sufficient reason for the exclusion of the evidence, although the further objection that the matters which the defendant offered, to prove were not alleged in the answer, may have been available. Willover v. Hill, 72 N. Y., 36. No other question seems to require consideration.

The judgment and order should be affirmed.

Haight and Dwight, JJ., concur.  