
    Edmund A. Stuart, Respondent, v. The New York Herald Company, Appellant.
    
      Amendment on the trial as to the State in which the defendant was incorporated— action for libel—proof of a publication after the action was begun—statute of . another State making the act charged a crime — it must be pleaded.
    
    The judge presiding at the trial of an action may allow a mistake in the complaint, which charges that the defendant is a New York corporation, when, in fact, it is a New Jersey corporation, to be corrected by amendment.
    In an action of libel it is error for the court to admit in evidence articles, published in the defendant’s newspaper after the commencement of the action, referring to the same general subject mentioned in the articles upon which the action was based.
    Where the articles upon which the action was based charged the plaintiff with having committed adultery in the State of New Jersey, proof of a New Jersey statute, not pleaded in the complaint, making adultery a crime, is not admissible.
    Appeal by the defendant, The New York Herald Company, 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 26th day of December, 1901, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 19th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Flamen B. Gandler, for the appellant.
    
      George liyall, for the respondent.
   Patterson, J.:

This is an appeal from a judgment in favor of the plaintiff in an action for libel, and from an order denying a motion for a new trial.

The defendant published in its newpapers, the New York Herald and the Evening Telegram, of the issues of the 23d of August, 1900, articles in which they charged that the plaintiff was an adulterer, and had been caught in the act of adultery with the wife of one Knowlden, in the State of New Jersey. It is not denied that the article is libelous per se, nor is it now insisted upon that it was privileged. The only points raised upon this appeal are that the verdict was against the weight of evidence — which is clearly an untenable ground — and that errors were committed on the trial in rulings of the trial judge. The first of these alleged errors requiring consideration is that the court allowed an amendment of the complaint, which charged that the defendant was a New York corporation, while in fact it was a New Jersey corporation. It was competent for the court to allow this amendment, because it did not change any material matter, nor did it alter the nature of the cause of action in any way, nor did it affect any right of the defendant. It did not bring in another or different corporation as a party, but merely allowed a proper description of the defendant and a more complete identification.

But it is claimed that there were two serious errors committed by the trial judge, and for which the judgment should be reversed and a new trial ordered.

First. This action was commenced on the 1st of September, 1900 — the articles were published in August, 1900. The court admitted in evidence, under objection and exception, two other articles published in the New York Herald under date of September 3 and September 5, 1900, both referring to the same general subject as that mentioned in the articles upon which the action was framed. The effect of these articles on the minds of the jurors was necessarily to aggravate- the defamatory character of the charge. The court below admitted them on the ground that they showed express malice, and on the theory that it was competent to show a repetition of the libelous matter. Undoubtedly, a repetition of the same matter may be shown to prove malice provided the repetition is before the action is begun, and there are cases in which the jury may take into consideration in that regard the unproven allegations of an answer setting up justification. But to entitle a plaintiff in an action for libel to give proof, the tendency of which is to enlarge the character of the libel, he must set up the facts in his complaint, although the article published by the defendant and upon which the action is framed is libelous per se. (Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 243; Frazier v. McCloskey, 60 id. 337; Daly v. Byrne, 77 id. 182.)

Second. There was error committed by the court in allowing, over the objection of the defendant, proof of a New Jersey statute making adultery a crime. That statute was not pleaded. Adultery is not a crime at common law, nor in the State of New York. Being a crime in the State of New Jersey, that should have been pleaded. There is nothing in the complaint to indicate that a crime was charged. That the articles complained of were libelous per se, because they held up the plaintiff to contempt and brought him into disrepute, and that, therefore, he would be entitled to recover damages, does not affect the consideration that the trial court allowed proof which would show that the publication carried with it the accusation that the plaintiff had committed a crime, which evidence necessarily must have been influential with the jury, and it is impossible, therefore, to determine what effect by way of aggravation that evidence may have had on their verdict. The damages may have been largely enhanced because of the charge that the plaintiff had committed a crime for which he would be liable to fine or imprisonment.

For these errors the judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

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