
    David L. Van Alstyne, Appellant, v. The Rochester Printing Company, Respondent.
    " Libel — evidence of the absence of malice on the part of a newspaper correspondent.
    
    In an action brought against the publisher of a newspaper to recover damages for the publication therein of an article concerning the plaintiff which was libelous . per se, in which action a regular correspondent of the paper who furnished the article in question testified that he never knew the plaintiff nor saw him until he appeared in court, and only knew about him from an investigation made after the appearance in another paper of an article relative to the subject of the libel, it was .considered by Hardin, J., that the correspondent could not be asked whether he had aiiy malice or ill-will against the plaintiff, and whether, in writing the article in question, he had stated the facts as he had learned them upon the investigation madó by him.
    Appeal by the plaintiff, .David L. Van Alstyne, from an order of the Supreme Court, made at the .Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 26th day of June, 1897, granting the defendant’s motion for a new trial made-upon the minutes..
    The action was brought to recover damages for :an alleged libel.. The jury rendered a verdict in favor of the plaintiff for $1,500.
    
      Oscar Tryon and F. G. Cushing, for the appellant.
    
      Eugene Van Voorhis, for the respondent.
   Hardin, P. J.:

, The article set out in the complaint was published on the 26th of' December,. 1895. An inspection of the article indicates that the-trial judge properly held that it was libelous per se. The stipulation and the evidence given at the trial were sufficient to warrant the conclusion that the defendant ivas the publisher of the Democrat cmd Chronicle in which the article set out in the complaint appeared. (Witcher v. Jones, 43 N. Y. St. Repr. 151.)

The article complained of was received from Race, a correspondent, of the newspaper then residing at Geneva, a young gentleman about eighteen years of age, who, in December, 1895, was the-regular correspondent of the Democrat and Chronicle,, and had occupied that position about one year. He testified that, December-24, 1895, “ After the regular issue of the Geneva Daily Times, I noticed an article in that paper concerning this question — this-advertising, matter,” and that he made certain inquiries about it,, and thereafter prepared the article in question. He testified : “ I. never knew the plaintiff. Never saw him only in court here.. .Knew nothing about him only from the investigation I made after the appearance of the article in the Times.” He was then asked :. “ Q. Did you have any malice or ill-will against him % ” This ivas^ objected to as immaterial and irrelevant, and the objections were sustained and an exception taken by the defendant. “ Q. State whether in writing this article you stated the facts as you learned them in your investigation.” Similar objections were taken, the evidence was excluded and an exception taken.

In Bennett v. Smith (23 Hun, 50), in an action for publishing a. libel concerning- the plaintiff, after the defendant had testified to- ■ certain statements made- to him by the plaintiff and given such other-information as he had at the time he wrote the. article, he was asked: “ Why did you write it ? ” and it was held that the court erred in excluding the question, “as evidence that he acted in good faith was admissible, not in mitigation of the compensatory, but of the vindictive damages which a jury might award in such a case.” The case was cited and followed in Lally v. Emery (54 Hun, 517). The latter case was again before the court, and it was assumed in the opinion delivered in 5.9 Hun, 239, that the motive and intent of the defendant in using the words proved were for the jury to ascertain upon all the evidence.”

The question of .the defendant’s intent in using the words complained of was again considered by the court in this same case in the opinions found in 79 Hun, 561. The decision made upon the latter appeal was affirmed (151 N. Y. 653).

In Cameron v. Tribune Association (7 N. Y. Supp. 739), which was an action for libel, the defendant, by way of mitigation of damages, alleged that the libelous publications were based upon a telegram received from its correspondent, and were published in good faith and. without malice as items of public news, and it Avas held: That the correspondent’s testimony as to Iioav the discrepancy occurred, and as to the grounds of his belief that the telegram sent by him Avas true, was admissible to disprove malice as bearing on. plaintiff’s right to punitive damages.” Ill the course of the opinion delivered by Van Brunt, P. J-., he said: “The facts and circumstances surrounding the sending of the condensed' dispatch were very pertinent upon the question of malice. These the witness was not allowed to state, except in a very restricted manner, and he was ■expressly precluded from stating by an express ruling what the Avitness kneAv of the character of the sender of. the original dispatch. * * * I cannot but conclude that the exclusion of this evidence worked great injustice to the defendant, and that because of it the judgment appealed from must be reversed.” That portion of ■ the opinion to which Ave have referred Avas concurred in by Macomber, J. That case Avas decided in December, 1889.

Subsequently, in October, 1890, the case of Morey v. M. J. Association (123 N, Y. 207) was decided by the' Court of Appeals; affirming the same case in 17 New York State Reporter, 266. In the latter case it was held as follows: .“ Defendant offered to show that the article was telegraphed to it by a correspondent; that the latter had heard that a breach of promise suit had been commenced against plaintiff; also to show how and where he obtained the information. This evidence was excluded. Held, no error; that defendant having published the libel without any inquiry and without any knowledge on the subject, was not entitled to the evidence for any purpose; that its correspondent was not its agent in the sense that his information was its information.”

Applying the doctrine of the latter case to the rulings which we have quoted, we are constrained to say that no error was committed by the trial judge in disallowing the questions propounded to the witness Race.

(2) Upon a. review of all the evidence given át the trial we are of the opinion that the learned trial judge was correct when he reached the conclusion on the motion for a new trial on the minutes that the damages were excessive. We think his order awarding a new trial should be sustained.

Follbtt, Green and Ward, J.J., concurred in the result; Adams, J.,not voting. t

Order affirmed, with costs.  