
    Mary Jennings Gray, Respondent, v. Henry P. Sampers and Eliza Meunier, Appellants.
    
      Libel—proof of the falsity of the article is evidence of malice—punitive damages.
    
    In an action of libel, proof by the plaintiff tending to establish the falsity of .the alleged libelous article is evidence of malice, and where it is given a question is presented for the jury whether the malice is of such a character as to call for exemplary or punitive damages; .this question is not taken from the jury because the defendant gives evidence which tends to show that there was in fact no actual malice.
    • Appeal by the defendants, Henry P. Sampers and'another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of June, 1898, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 23d day of June, 1898, denying the defendants’ motion for a new trial made upon the minutes.
    The action was brought to recover damages for a libel alleged to have been published of and concerning the plaintiff in a newspaper known as the Courier des Etats- Unis, of which the defendants are the proprietors.
    The article complained of was written in French, but a translation thereof is incorporated into the complaint, and is as follows:
    “ Sold by His Wipe.
    ,£ They have often told of wives that their husbands, in order to relieve themselves of them, gave them for a few dollars to obliging neighbors. But the opposite case, that of a husband sold by his wife, had not yet been presented, we believe. It is at the police court of Yorkville that that singular transaction has been revealed in the particulars like this:
    “ The Robinson husband and wife, married for three years and living at 45th street, west, are peddlers who sell chiefly oilcloth. They obtain their stock at the house of a woman, Gray, a widow, having a little shop in the same house. One fine day the Robinson wife noticed that her husband passed the greatest part of his time with the lady Gray. Furious with this discovery she went to find the widow, and held with her almost this conversation:
    
      “ ‘ If you wish my husband you can take him and keep him; I’ll sell him to you for $25,’ and Mrs. Gray accepted the bargain. She paid the $25 to the Robinson wife, who gave back to her a bill of sale duly receipted, and Robinson, quite satisfied with this arrangement, took his hat and his coat and has changed his residence. But at the end of a few days the Robinson wife repented of that which she had done ; she went to find a lawyer, who managed to summon the husband before the Police Court for having abandoned his wife. Robinson did not answer the summons and it was then that it was indeed necessary to explain to the Judge under what circumstances the husband and wife separated from each other. Row, the Robinson wife asks divorce, and it is probable that she-will be able to obtain it, although shé has on the whole provoked the departure of her husband. The Robinson husband and wife and the widow Gray are all three natives of Scotland.”
    
      Joseph Kling, for the appellants.
    
      William McM. Speer, for the respondent.
   Goodrich, P. J.:

We have already held at the present term, in the case of Gray v. The Brooklyn Union Publishing Company (post, p. 286), that an article, substantially similar to the one for the publication of which this action is brought against the owners of the Courier des EtatsUnis, was libelous per se. The verdict of the jury in.the case at bar has established the fact that the article was written of and concerning the plaintiE. The-jury rendered a verdict for $600, and from the judgment entered thereon and from the order denying a motion for a new trial the defendants appeal.

The counsel for the appellants contends that the article in question shows, on its face, that it was the report of a judicial proceeding before one of the magistrates of the city of New York, and, therefore, within the provisions of section 1907 of the Code of Civil Procedure, which reads:

“An action, civil or criminal, cannot be maintained against a reporter, editor, publisher or proprietor of a newspaper, for the publication therein of a fair and true report of any judicial, legislative or other public and official proceedings, without proving actual malice in making the report.”

There ivas an allegation in the answer that a summons had been issued by the magistrate’s court above mentioned, and that the article in question was “ an account of said judicial proceedings in the said court, which account was a true and correct report of said proceedings.” The only evidence to sustain this allegation is that of Benjamin F. Greenthal, who testified that he was an attorney and counselor at law, having an office at 49 and 51 Chambers street and 315 West Fifty-fourth street, and that at about the time named in the article a summons was issued “from the City Magistrate’s Court, fourth district, city and county of New York, 57th street, near Third avenue, entitled, ‘ The People of the State of New York to John Robinson,’ signed by Magistrate Crane.”

No copy of the summons appears in the record, although it was admitted in evidence, nor any affidavit or written complaint upon which it was issued. There was no aiipearance of John Robinson, the defendant named in the summons, upon the day of its return, nor any examination of witnesses in respect to the charge. The court instructed the jury that one of the defenses was that the article was “ a fair report of some judicial proceeding before a magistrate in the Yorkville court at Fifty-seventh street, Borough of Manhattan. Nobody has testified here in this court before us what occurred there. There has been no evidence by anybody who was present and heard anything that occurred before that court. The only inference that anything occurred there is from the fact that the summons was issued.”

There was an utter failure of evidence to sustain the defense, under section 1907, and the instruction of the court was proper.

The counsel for the appellants also contends that the court erred in charging th'e jury “ that where a party maliciously libels another - the jury have a right in their discretion — sound discretion it . means — to punish the party by the infliction of punitive damages.” '

This was not error as the plaintiff gave evidence tending to show the falsity of the article; and it is well settled that the plaintiff, in; an action of libel, gives evidence of malice when he proves the falsity - of the libel, and it then becomes a question for the jury whether-the malice is of such a character as to call for exemplary or punitive damages; and the question is not to be taken away from the jury because the defendant gives evidence which tends to show that there was in fact no actual malice. (Samuels v. Evening Mail Association, 75 N. Y. 604, affirming judgment on verdict, on dissenting opinion of Davis, P. J., in the General Term, 9 Hun, 288; also McFadden v. Morning Journal Assn., 28 App. Div. 508.)

The judgment must be affirmed.

All concurred.

Judgment and order affirmed, with costs.  