
    John J. Lord, Appellant, v. New York Evening Journal Publishing Company, Respondent.
    First Department,
    January 8, 1909.
    Libel — words charging felony — nominal damages — erroneous charge.
    Where a newspaper without reasonable excuse charges a reputable citizen with assault and highway robbery, a verdict for six cents damages is wholly inadequate compensation for the libel. A judgment entered thereon will be reversed where it is probable that the result was arrived at by the refusal of the court to charge that the jury in assessing the damage should consider the fact that the article accused the plaintiff of assault, conspiracy, larceny and robbery, crimes-which are felonies, and punishable by fine and imprisonment.
    Appeal by the plaintiff, John J. Lord, from a judgment of the Supreme Court in favor of the plaintiff for nominal damages, entered in the office of the clerk of the county of Yew York on the 21st day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of November, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John E. O’Brien, for the appellant.
    
      Clarence J. Shearn, for the respondent.
   Scott, J.:

The plaintiff appeals from a judgment in his favor for nominal damages in an action for libel. The plaintiff, on the evening of April 4, 1905, or the early morning of April fifth, happened to be a witness of an assault committed by three highwaymen upon one Dominick Bianca. Plaintiff went to the rescue, whereupon the highwaymen ran away, followed by plaintiff, who ultimately assisted a policeman in effecting the capture of one of the assailants. At the station house the person arrested gave the name of Stephen Murphy, and plaintiff handed 1ns card to the officer in charge, in case he should be required as a witness. The defendant publishes daily several editions of an evening paper. In an early edition on April 5, 1905, it gave an account of the incident and stated correctly that the man arrested gave the fiame of Stephen Murphy. In its later editions issued on the same day, owing doubtless to some carelessness, for which, however, no excuse is offered, the defendant, after giving a florid account of the transaction, stated that the highwayman described himself as John J. Lord of No. 424 West Twenty-fourth street, this being the name and address of the plaintiff. This statement was contrary to the fact, and the defendant does not contend that it was not libelous. Nothing appeared in the evidence to cast the slightest reflection upon the plaintiff’s character, and the defendant at the trial expressly disclaimed, any intention to call his character in question. No special damages were claimed; and the jury returned a verdict for plaintiff for six cents damages. We think that these damages were wholly inadequate in a case where a newspaper, by a blunder without reasonable excúse, charges a perfectly respectable citizen with being a highwayman, and we cannot avoid the impression that the jury misapprehended the serious nature of the charge implied in the article, and the responsibility which the defendant assumed in publishing it. It may very probably be that this result was reached by the refusal of the court to charge the very proper request of plaintiff’s counsel that.: “In arriving at the amount of damages the jury should take into consideration the fact that in the libelous articles which form the basis of this action, there are imputed to the plaintiff the crimes of assault, conspiracy, larceny and robbery; all of which are felonies punishable by finé and imprisonment.” There can be no doubt that the effect of the article complained of, if believed by the reader, was to convey the impression that plaintiff had been guilty of the offenses enumerated in the request, and it was propér that the jury should keep that fact in mind in estimating the damages. The refusal to so charge was error, and in view of the verdict we cannot say that the error was harmless. Other exceptions have been urged upon us which it is not necessary to consider.

For the reasons stated the judgment and order appealed from must be reversed and a new trial granted,, with costs to appellant to abide the event.

Patterson; P. J., McLaughlin, Laughlin and. Houghton, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  