
    Rose G. Garrison, Respondent, v. Sun Printing and Publishing Association, Appellant.
    First Department,
    December 4, 1914.
    Trial—libel—when verdict should not be set aside by trial court—• damages within discretion of jury.
    A verdict ought not to be set aside, except for good and substantial reasons.
    The amount of damages to which a plaintiff is entitled for the publication of a libel is peculiarly within the discretion of the jury, and a verdict will not be disturbed as being against the weight of evidence, unless the court can see that the jury in reaching its conclusion failed to give effect to all of the evidence, or was influenced by something outside of it.
    A verdict in such an action should not be set aside upon the ground that the plaintiff may have been prejudiced because defendant’s counsel during the course of the trial stated in the presence of the jury that he intended to prove certain facts, which he did not prove.
    Appeal by the defendant, Sun Printing and Publishing Association, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1913, granting plaintiff’s motion to set aside a verdict in her favor for $100 and granting a new trial.
    
      Herbert C. Smyth, for the appellant.
    
      Herbert H. Gibbs, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages for a libel published in defendant’s newspaper on the 22d of November, 1908. The libel was contained in an article reporting the capture in Seattle, Wash., of one Elliot A. Archer, a forger, who had disappeared from Newark, N. J., in 1902. It was stated in the article that “At the time of Archer’s disappearance Mrs. George E. Garrison of 426 Summer Avenue also disappeared. Later she wrote to her husband from Denver that she had been deserted and begged forgiveness. Garrison sent her money and she returned to the East. She disappeared a second time and later was heard from as being with Archer on the Pacific Coast.”

Mrs. George E. Garrison lived at 436 and not at 426 Summer avenue. Mrs. E. G. Garrison did live at 426 and she did elope with Archer at the time stated in the article.

At the conclusion of the trial the court left it to the jury to determine whether the article complained of was published of or concerning the plaintiff and if so the amount of damages to which she was entitled. She had a verdict for $100, which the court set aside and granted a new trial, and defendant appeals.

The verdict was set aside, as appears from the memorandum of the learned justice, because defendant’s counsel during the course of the trial stated in the presence of the jury that he intended to prove certain facts which were not proved and by reason thereof the plaintiff’s case may have been prejudiced. The order, however, setting aside the verdict and granting a new trial states that it is upon the exceptions taken by the plaintiff and because the verdict is for insufficient damages “ and as a matter of judicial discretion.”

A verdict ought not to be set aside except for good and substantial reasons. The record as I read it does not disclose any exceptions taken by the plaintiff which would justify setting aside the verdict. Nor do I think under all the circumstances connected with the publication that the damages can be said to be insufficient. The amount of damages to which a plaintiff is entitled for the publication of a libel is peculiarly within the discretion of the jury (Holmes v. Jones, 147 N. Y. 59; Mattice v. Wilcox, Id. 624; Crane v. Bennett, 177 id. 106); and a verdict will not be disturbed as being against the weight of evidence unless the court can see that the jury, in reaching its conclusion, failed to give effect to all of the evidence, or was influenced by something outside of it. There is nothing here to indicate that such was the case. Nor was the court justified in setting aside the verdict for the reasons stated in his memorandum. Counsel for defendant was acting within his rights when he stated what he expected and intended to prove. The colloquy which then ensued between court and counsel for the respective parties could not have influenced the jury. That it was not considered of any importance is evidenced by the fact that plaintiff’s counsel made no objection to it; on the contrary, joined in the discussion. And if the statements made could by any possibility be considered objectionable, the effect upon the jury was removed by the instruction of the court immediately following the discussion, when he stated they were not to be led astray by what counsel said, but were to get the facts from the evidence.

The issues in the case were fully tried and fairly submitted to the jury. The trial lasted four days and the record on appeal consists of 237 printed pages. Under such circumstances a verdict ought not to be set aside unless there be good and sufficient reason therefor. The discretion of the trial court in setting aside • a verdict is the discretion of the Supreme Court and its exercise cannot be sanctioned, when brought under review on appeal, unless there is something to indicate at least a basis for it. (Maier v. Duffin, 134 App. Div. 594.)

I am of the opinion that the verdict ought not to have been set aside, and that the order appealed from should, therefore, be reversed and the verdict reinstated, with costs.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Order reversed and verdict reinstated, with costs. Order to be settled on notice.  