
    John E. Morey, Jr., Resp’t, v. The Morning Journal Association, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    1. Libel.
    A published statement that a married man is threatened with a breach, of promise suit is libelous por se. *
    
      3. Same—Evidence.
    Evidence that the plaintiff was a married man and as to his business is competent, not to show special damage, hut to show the circumstances surrounding him and as hearing upon the hurtful tendency of the libel, and the general damage to which he was exposed.
    3. Same.
    Defendant, a newspaper company, will not he allowed to introduce evidence that its correspondent, who had telegraphed the item, had heard that such suit had been commenced, or how or where he had obtained the information, where defendant did not have such information at the time of the publication.
    4. Same.
    The fact that such an action had been begun against another person of nearly the same name as plaintiff cannot be proven in mitigation of damages under such circumstances as to the source of information.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff, entered on verdict of jury, and order denying motion made on the minutes for new trial.
    
      Cassius C. Davy, for app’lt; Raines Bros., for resp’t.
    
      
       Affirming 17 N. Y. State Rep., 260.
    
   Earl, J.

On the 20th day of October, 1884, the defendant was a corporation and published in the city of New York a newspaper called the Morning Journal, and the plaintiff was a resident of Rochester. On that day the following article appeared in that paper:

“ REFUSES TO BE RECONCILED.
“A Rochester Society Belle Who Insists Upon Being
Married.
Special to the Morning Journal.
“Rochester, N. Y., Oct. 19.

“ Upper tendom is highly excited over a threatened breach of promise suit against John E. 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, claiming that the publication was libelous, brought this action to recover damages on account thereof, and recovered a judgment which has been affirmed at the general term.

The defendant claims that the article is not libelous per se, and as no special damages were alleged or proved, contends that the plaintiff should have been non-suited.

There can be no doubt that the publication is libelous per se. Its tendency was to disgrace the plaintiff, and to bring him into ridicule and contempt. 2 Colby’s Cr. Law, 57; Starkie on Libel and Slander (2d Eng. Ed.), 166, 168; Moak’s Underhill on Torts, 199; Townshend on Slander and Libel, § 21; Cropp v. Tilney, 3 Salk., 226; Villers v. Monsley, 2 Wils., 403 ; Shelby v. Sun Printing Ass'n, 38 Hun, 474, affirmed in this court, 109 N. Y., 611 ; 14 N. Y. State Rep., 919 ; Moore v. Francis, 121 N. Y., 199 ; 30 N. Y. State Rep., 467.

At the trial the defendant objected to proof of the nature of the plaintiff’s business, and that he was a married man. This proof was competent, not to show special damage, as none was alleged, but to show the circumstances surrounding the plaintiff, and as bearing upon the hurtful tendency of the libel and the general damage to which he was exposed.

The article was sent by telegraph to the Morning Journal by its Rochester correspondent, and. on the trial the defendant offered to show by him, substantially, that he had heard that the breach of promise suit had been commenced against the plaintiff, and how and where he obtained the information. This evidence was excluded by the trial judge because the defendant did not, have any information on the subject at the time of the publication. It published the libelous article without any inquiry and without any knowledge on the subject, and hence it was not entitled to the evidence for any purpose. The evidence had no bearing upon its good faith and could not be used to rebut malice or to mitigate the damages. It received the libelous article from its correspondent, who was not its agent in the sense that his act was its act and his information its information, and it could receive no advantage from the fact that he was imposed on or innocently mistaken.

The defendant also offered to prove that an action for a breach of promise of marriage was actually commenced against one John E. Morey, not the plaintiff, and that the Rochester correspondent had heard of the suit before sending the article to it for publication, and this evidence was excluded upon the same ground; and for the same reasons we think there was no error in the exclusion. The defendant cannot have the benefit of such a fact in mitigation of damages of which it had no knowledge.

For these reasons and others more fully stated in the able opinion of the court below, the judgment should be affirmed, with costs.

All concur.  