
    Evender S. Aker, Respondent, v. The Brooklyn Daily Eagle, Appellant.
    First Department
    February 5, 1909.
    Trial — consent that court shall charge defendant’s request — waiver of prior exception — evidence — harmless error — libel — charge that plaintiff was dishonest — damages.
    Where, in an action for libel, the court has charged that the defendant’s justification was not complete, but after exception.by the defendant and after a request that the jury be charged- that they may determine whether the justification was complete, the plaintiff’s counsel consents that the charge be modified and the question left to the jury, and the defendant thereupon withdraws its request to charge, it is not thereafter entitled to the-benefit of its exception,- for it is presumed that, owing to the plaintiff’s consent, the court would have charged the defendant’s request. Having had an opportunity to cure the error and having declined to do so, the defendant cannot stand upon its exception, and must be deemed to have waived it and to have acquiesced in the charge as made.
    Although evidence that the plaintiff was threatened with personal violence during the altercation which inspired the defendant’s article charging him with dishonesty was immaterial and was erroneously admitted, the error does not require a reversal of a j udgment for the plaintiff.
    Where an article charged the plaintiff with dishonesty, he is entitled to some damages on the failure of the defendant to prove the truth of its assertion.
    Appeal by the defendant, The Brooklyn Daily Eagle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of April, 1908, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 20th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      John J. Kuhn, for the appellant.
    
      John B. Doyle, for the respondent.
   Houghton, J.:

The defendant published an article in its newspaper charging, in substance, that the plaintiff had been dishonest in his business dealing. Justification was pleaded, and if the jury believed the evidence produced by the defendant, such justification was established.

The plaintiff denied that he had been dishonest in his business dealing as published, and, therefore, the question of justification was one for the jury.

The learned trial court, however, charged the jury that the plaintiff was entitled to some verdict at their hands and at least six cents, on the ground that the justification of defendant was not complete. Defendant’s counsel excepted to the charge of the court that there had not been a complete justification established, and in connection with such exception asked the court to charge the jury that it was for them to determine whether there had been an absolutely complete justification on the part of the defendant. Thereupon counsel for the plaintiff consented that the court so modify its charge and leave that question to the jury. Upon this consent being given, defendant’s counsel withdrew such request to charge, and now insists that the court erred in not submitting to the jury the question as to whether or not the defendant had completely justified.-

We are of the opinion that, under the circumstances disclosed, the: defendant is not entitled to the benefit of its exception in that respect. Presumably, upon-the consent of the plaintiff, the court would have charged as the defendant requested. When the defendant learned that the plaintiff was willing to consent, and that its request, which would cure the error committed by the court, was about to be charged, - it withdrew the request which it had made. Assuming, as we mustj that the court, upon consent of plaintiff’s counsel, would have charged the request and thus left the question of justification to the jury, the situation is the same as though the court had announced that it would charge as the defendant requested if iit so insisted. Instead of insisting, the defendant withdrew its request. Having had an opportunity to cure the error and declining to do so the defendant cannot stand upon its exception, and must be deeméd to have waived it and to have acquiesced in the charge as made.

While the fact that Higginbotham threatened personal violence against the plaintiff during the altercation which inspired the published article was of no pertinency to the issue, the admission of evidence to that effect was not such error as requires a reversal of the: judgment.

The published article charged the plaintiff with dishonesty, and he was entitled to some damages unless the defendant proved the truth of its assertion. . '

The act of its counsel on the trial being such that it cannot take advantage of the error of the court'in its charge, as we have concluded - and pointed out, it follows that the judgment and order must be affirmed, with costs.

Patterson, P. J., McLaughlin, Laughlin and Scótt, JJ., concurred.

Judgment and order affirmed, with costs.  