
    Ferdinand Griebel, Appellant, v. The Rochester Printing Company, Respondent.
    
      Libel—that the name used was not the same as, but very similar' to, that of the plaintiff does not justify the submission to the jury of the question whether the plaintiff was intended—plaintiff’s right to show that the article was not true— liability for a negligent, but not malicious, publication.
    
    In an action brought to recover damages alleged to have resulted from the publication by the defendant, in its newspaper, of an alleged libel, it appeared that upon complaint of the plaintiff, Ferdinand Griebel, one Bartholomew Connors was arrested for obtaining a watch from him under false pretenses.
    Upon the next day the defendant published an article headed, “ Under False Pretenses ” which stated in substance that detectives arrested Ferdinand Grueble upon the charge of obtaining goods under false pretenses from Bartholomew Connors, and upon the following day, the defendant, having learned that it had committed an error, published this retraction, '' It was Bartholomew Connors who was arrested on Saturday for obtaining a watch on false pretenses, instead of Ferdinand Grueble. Grueble was the man who swore out the warrant.”
    Upon the trial the court sent the case to the jury upon the theory that, because the plaintiff’s surname of Griebel was spelled Grueble in the article and in the retraction, the jury were at liberty to find that the original article was not published of and concerning the plaintiff — although there was no other man having the same name as the plaintiff in the city of Rochester, and it was conceded that the plaintiff was the person who had caused Connors’ arrest. The plaintiff did not, however, except to the submission of this issue to the j ury.
    
      Held, that, notwithstanding this failure to except, the case having been submitted to the jury upon a wholly erroneous theory, it was the duty of the court to grant a new trial;
    That, upon the question whether the report was privileged as being a fair and true report of the judicial proceeding, it was competent for the plaintiff to prove that the report was not fair and true; and that a refusal hy the court' to permit the plaintiff to prove he did not go to the house of Connors and get his watch hy false pretenses, was erroneous;
    That where a newspaper published a libel it was liable in damages, although the publication was not made with malice in fact.
    Appeal by the plaintiff, Ferdinand Griebel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe, dismissing the complaint on the merits, on the 16th day of July, 1892, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order bearing date the 6th day of June, 1892, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Walter S. Hubbell, for the appellant.
    
      Eugene Van Voorhis, for the respondent.
   Follett, J.:

This action was begun May 22, 1888, to recover damages for the publication by the defendant in its newspaper, The Rochester Democrat and Chronicle, of an article alleged to be libelous. April 21, 1888, the plaintiff made a complaint before the police justice of the city of Rochester charging that one Bartholomew Connors had obtained a watch from him by fraudulent representations and false pretenses. On this complaint a warrant was issued for the arrest of Bartholomew Connors, and he was arrested. On the 22d of April, 1888, the following article was published in defendant’s daily paper:

“Under False Pretenses.
“ Detectives Furtherer and Kavanagh yesterday arrested Ferdinand Grueble on .the charge of obtaining goods under false pretense. Bartholomew Connors, of Faber street, who swore out the warrant, claims that Grueble went to his house while he was away one day last week and represented to his wife that he had been sent for her husband’s watch. On these representations she handed over the time-piece, and this is what leads to the difficulty.”

On the next day, the defendant learning that it had committed an error and that Ferdinand Griebel was the complainant and not the person charged with the crime, published this retraction:

It was Bertholomew Connors who was arrested on Saturday for obtaining a watch on false pretenses instead of Ferdinand Grueble. Grueble was the man who swore out the warrant.”

It will be observed that the plaintiff’s surname, as printed in these two articles, is not correctly spelled; and because of this circumstance the case was sent to the jury upon the theory that they were at liberty to find that the first article was not published of and concerning the plaintiff, which, under the evidence, seems to me utterly untenable. It is conceded that this plaintiff was the person who made the complaint against Connors and was a participant in the judicial proceeding referred to. There was no other man having the same name as the plaintiff in the city of Rochester, and the article very clearly referred to the person who had a controversy with Bartholomew Connors in the Police Court. The Christian name is correctly given in the article complained of and also in the retraction. The name of the person arrested is correctly given, and the article clearly referred to the person who w'as interested in this prosecution, and by no construction of the evidence can a question of fact as to who was referred to by the article be raised; and the court erred in submitting the case to the jury on that theory.

It is urged, and it is true, that the plaintiff did not except to the submission of this issue to the jury; but when a case is submitted by a trial judge to the jury, upon a wholly erroneous theory, this court has power, and it is its duty, to grant a new trial because of such submission, though an exception was not taken. (Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506 ; Whittaker v. D. & H. Canal Co., 49 Hun, 400, and cases cited.)

This action was first tried in March, 1890, and the same question of fact was submitted to the jury and found for the defendant. Hpon the review of the case by the General Term (60 Hun, 319), the late Mr. Justice Macombee, in speaking for the court said : “ Hpon the trial a point was made that the plaintiff was not the same person as the one mentioned in the newspaper article. But it seems to us that there was no merit in that claim, because, under the evidence, all of the plaintiff’s acquaintances would necessarily understand from the article that he was the person referred to. If it be true, as is claimed by the learned counsel for the defendant, that the verdict of the jury was based upon the proposition that the Ferdinand Griebel mentioned in the title of this action, and the Ferdinand Grueble mentioned in the article, as published, are not the same persons, that conclusion was wholly unsupported by the evidence and should not be permitted to stand.”

A motion for a new trial was made upon the ground that the verdict was contrary to the evidence, and the order denying the motion is appealed from, which brings to this court the question that the verdict, in so far as it finds that the plaintiff was not the person referred to in the article, is unsupported by the evidence. The learned judge presiding at the trial under review fell into an error in not following the rule laid down by the General Term.

The article complained of purported to be a report of a judicial proceeding, and if the report had been fair and true it was privileged unless published maliciously (Code Civ. Proc. § 1907); and it was competent for the plaintiff to prove that the report was not fair and true, and that he did not go to the house of Connors and get his watch as stated in the article; and the refusal of the court to permit the plaintiff to prove this fact was error. It is alleged in the complaint that the article was maliciously published, but there is no evidence that there was any malice in fact — personal ill-will — as distinguished from malice in law. It was simply a negligent publication, which was promptly retracted the next day; but a newspaper negligently publishing a libel is liable for the damages sustained by the person libeled, though the publication was not made from malicious motives — malice in fact.

The judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to abide the event.  