
    Thomas W. Johnson, Resp’t, v. William H. Synett, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    1. Libel—Libelous per se.
    An article in a newspaper, “ It is reported about town that Rev. Mr.. Johnson, the M. E. colored minister from this place * * * was arrested. * * * It is" claimed that he was too much of a family man— He is still under cover,” is libelous per se. ,
    2. Same—Circulation.
    The evidence as to the circulation of the libelous article was held sufficient to warrant the submission of the question of publication and circulation to the jury.
    Appeal from a judgment in favor of plaintiff.
    
      Charles H. Noxon, for app’lt; C. H. & J. A. Young, for resp’t.
   Brown, P. J.

This action was brought to recover damages for an alleged libel. The appellants are the proprietors and publishers of the Westchester County Tribune, a newspaper published at New Rochelle, in Westchester county. On May, 25, 1894, the following article appeared in that paper :

‘‘ It is reported about town that Rev. Mr. Johnson, the M. E. colored minister from this place, was, one day last week, arrested in New York, after he alighted from the train at the Grand Central station. It is claimed that he was too much of a family man. He is still under cover.”

At the opening of the case, the appellants’ counsel moved to dismiss the complaint, upon the ground that the article was not libelous, and, at the close of the plaintiff’s testimony, moved that a verdict be directed for the defendants, on the ground that facts sufficient to- constitute a cause of action had not been proven. These motions were denied, and exceptions taken to the court’s ruling. There is no doubt the publication was libelous per se. Shelby v. Sun Printing, etc., Association, 38 Hun, 474; id., 109 N. Y. 611; 14 St. Rep. 919; Moore v. Francis, 121 N. Y. 199-204; 30 St Rep. 467; Morey v. Morning Journal Association, 123 N. Y. 210; 33 St. Rep. 49. The defendants admitted that they were the publishers of the newspaper and that the article was published therein, but denied that it was published with malice or intended to injure the plaintiff. The plaintiff gave evidence that the paper was generally sold on the streets of Hew Rochelle, but proved no sales of the issue containing the article in question. He, however, proved an interview with the defendants, in which they admitted the publication, and offered, if the article was untrue, to publish a retraction. A copy of the paper with the article therein was produced on the trial. This proof was sufficient to carry the question of publication and circulation to the jury, and the request to charge the jury that there was no evidence of circulation, and that one copy was not evidence of circulation, was properly denied, Marx v. Press Publishing Co., 34 St. Rep. 316; id., 134 N. Y. 563; 47 St. Rep. 775; Townsh. Sland. & L. (4th ed.) section 373.

The judgment must be affirmed, with costs

All concur.  