
    SUPREME COURT, ONONDAGA TRIAL TERM,
    DECEMBER, 1900.
    Gardner Wells, Plaintiff, v. The Herald Company, Defendant.
    Motion by defendant for a new trial.
    William Nottingham, for motion.
    E. W. Parsons, opposed.
   Hiscock, J.

The motion for a new trial is granted upon the ground that the jury were not properly and sufficiently instructed upon the subject of punitive damages.

It is urged that the recent case of Krug v. Pitass, 162 N. Y. 154, has overruled the prior cases, of which there were many, holding that, under proper circumstances, punitive damages might be based upon proof simply of the publication of an article false and libelous per se. Assuming, however, that, as has been suggested in very recent decisions, it was not the intention of the Court of Appeals to go to that extent, but that punitive damages may still be awarded, without proving express malice, in a case where an article has been published false and libelous per se, and of such a character as to fairly warrant the inference that it was published wantonly, recklessly, or without due investigation as to its truth, I am still inclined to think that this motion should be granted. The instructions upon the subject were too general, and not sufficient to properly call to the attention of the jury the conditions and qualifications under which they might award such damages. This is independent of the further ground urged upon this motion that under his complaint plaintiff is not entitled to demand exemplary damages.

Motion granted.  