
    Isaac W. Edsall, plaintiff and respondent, vs. James Brooks and another, defendants and appellants.
    The refusal of the city editor of a newspaper to publish a retraction of a libel published in such paper, does not tend to prove the animus of the proprietors to have been malicious; and evidence of such refusal is not admissible for the purpose of enhancing the damages in an action against them for the libel.
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard June 8, 1864;
    decided June 25, 1864.
    Actioh to recover damages for an alleged libel published in the New York Evening Express, a newspaper owned by the defendants. On the first trial, the judge before whom the trial was had, dismissed the complaint. On appeal, the court at general term, granted a new. trial. (See ante, p. 29.) On the second trial, before Judge McCunn and a jury, in March, 1864, Charles E. Manning, a witness for the plaintiff, testified that he knew the city editor of the Evenipg Express on the 24th of April, 1862, and prior thereto; that Clement E. Hopkins (since deceased) was such editor, and had the sole charge of the city item, department in that paper, and the supervision of what was to be published, or rejected, or corrected. That a few days after the publication of the alleged libel, the witness introduced the plaintiff to Mr. Hopkins,, and heard a conversation between them, on the subject of the libel, and an explanation the plaintiff wished to have published. The plaintiff was examined as a witness in his own behalf. He was asked:
    “ Did you have any conversation with Mr. Hopkins, the city editor, on the occasion of your introduction by Mr. Manning, the last witness, touching the alleged libel upon yon, and concerning the card or explanation, and if so, state what it was ?” This question was objected to by the defendants, on the ground that what occurred between the witness and Mr. Hopkins cannot affect the defendants. Objection overruled, and exception by the defendants’ counsel. “A. After being introduced to the city editor, I told him that I had had injustice done to me" by the publication in his paper that has been spoken of here, and that I hoped he would be kind enough to publish that card in the paper. I had copies of the affidavits of those men with me, and I showed them to him. I asked him to publish the correction. He looked at it and read it, and wrote upon it: Mr. Edsall says he was not dismissed for blackmailing, but simply for the violation of a rule,’ and showed it to me, and said we cannot publish that other matter. Ton must get your redress somewhere else.’ I said ‘Very well, sir/ and left the office.”
    ££ Q. Is this the paper or card that you refer to as the one you wished published ?
    A. Tes, sir.
    Q. Did you tell the "city editor for what purpose you desired this card published ?
    A. Of course, to set me right with the public.”
    The paper was then read in evidence, which was in the words and figures following:
    
      “ Blackmailing bt a Policeman.
    
      Messrs. Editors: My attention has been called to a local in the Express of Thursday, entitled as above, wherein I am the policeman referred to. Blackmailing is a heinous crime— a state’s prison offense. It is extortion by threats, and none but the vilest could be guilty of it. Tou will see by inclosed affidavits, which I send merely for your perusal, that the facts in my case do not in any possible way justify such an injurious and degrading imputation. The affidavits were taken before the police commissioners, and you can ascertain from Commissioners Bowen and Acton, before whom my examination was had, how utterly unfounded is such imputation; for both will say that there- was nothing whatever in the ease to warrant it.
    I was simply charged with violating that rule of the department which prohihits members of the force from receiving money as a gratuity, without permission of the board. This permission I neglected to secure. I had aided in recovering for two parties some f 114, of which they had been fleeced by the Funks, and they, feeling grateful, without any solicitation by, or expectation from me, tendered me $9 as a present. I declined its receipt, but they insisted that • I should take it, which I finally did.
    These parties neither initiated or made any charge against me.
    You can readily ascertain the correctness of the foregoing at headquarters, Broome street, and your sense of justice will, I have no doubt, induce you cheerfully to correct the scandalous and utterly unfounded imputation which your reporter has so gratuitously attached to me of blackmailing.
    Respectfully,
    Isaac W. Edsall.”
    The plaintiff rested. The defendánts’ counsel moved to dismiss the complaint in this action upon the grounds following, .namely: ' “ The plaintiff is not represented in his complaint as belonging to any trade, calling or profession. Nor was the publication complained of made of the plaintiff in any particular character. And that the complaint contains no allegation of express malice, nor special damage, nor is there proof of either; thát the words complained of are not actionable without such proof of malice and damage, and consequently no cause of action has been stated in the complaint, and none proven.” Which motion was denied by the court, and the defendants’ counsel-excepted to the decision.
    The jury found a verdict ip favor of the plaintiff, for $300, and from the judgment entered thereon, the defendants appealed to the general term.
    
      A. Oakey Hall, for the appellants.
    
      Addison Sanford, for the respondent.
   By the Court,

Barbour, J.

As no evidence was given upon the trial of this action showing that the defendants directed the publication in their newspaper of the alleged libelous matter complained of, or, even knew of its insertion,' no malice could have been imputed to them beyond that which the law implies, from the fact that they were the proprietors of such paper, and had the power to withhold the publication. No actual malice was , proven against them, and, of course, the plaintiff would have been entitled to such judgment only, if any, against the defendants, as the evidence would have warranted, under that state of facts. The testimony of Mr. Manning touching the declarations of Hopkins, the city editor of the defendants’ newspaper, and his refusal to publish a retraction or explanation of the libelous article, must have been offered for the purpose of inducing the jury to believe that the city editor and employee of the defendants was actuated by malicious motives, not only in refusing to insert the explanation in the paper, but in publishing the libelous article originally, and that the defendants were legally chargeable therewith, in the same manner as if they had themselves refused. The admission of this testimony, we think, was improper. The object of the plaintiff’s counsel in offering the evidence, must have been to enhance damages against the defendants because of the malice which the juiy would naturally infer from the refusal of the editor, who was under the defendants’ control, and for whose wrong in publishing they were legally responsible, to right such wrong ; and the evidence, it may fairly be presumed, produced the effect upon the minds of the jurors which the plaintiff designed, and increased the damages awarded. Had the defendants, themselves, refused to make a retraction, when convinced of the injury that had been done to the plaintiff, the jury, probably, might legitimately have arrived at the conclusion that they were chargeable with actual malice in permitting the publication to be made ; as it would have tended to prove a general design to injure the plaintiff. But the refusal of their employee to insert the retraction did not tend to prove their animus to have been malicious. Indeed, there is no reason for supposing that the defendants would not have published it, had they been, personally, requested to do so.

Without considering any further point presented upon the argument of the appeal, we are of opinion that, for this reason, the judgment should be reversed and a new trial granted, with costs to abide the event.  