
    Patrick S. Cassidy, Resp't, v. The Brooklyn Daily Eagle, App'lt.
    
    
      (Court of Appeals,
    
    
      Filed May 2, 1893.)
    
    Libel—Pleading—Evidence .
    Where the libel complained of was that plaintiff “ is as big a rascal as * Red Jim' McDermott, and a bigger rascal,” proof of what kind of a rascal McDermott was in the estimation of defendant is an enlargement of the libel itself, and in order to be admissible should be averred in the complaint.
    
      Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon a verdict in favor of plaintiff at circuit.
    
      Wm. N. Dykman, for app’lt; Edwin R. Leavitt, for resp’t.
    
      
       Reversing 46 St. Rep., 334.
    
   Peckham, J.

The plaintiff commenced this action to recover damages for three separate libels published of and concerning him by the defendant. The complaint contained a separate count for each libel. Upon the first and second counts the defendant had a verdict. Upon the third count the plaintiff obtained a verdict. The third count alleged that the defendant published the libel on the 6th day of July, 1887, and set it forth as follows:

“ Timely Talk.
O'Donovan Rossa not in a Retracting Mood.
“ O’Donovan Bossa.—I have not denied that I have described Patrick Sarsfield Cassidy as being as big a rascal as 1 Bed Jim f McDermott. I did say such a thing, and I stand by it. I have reason to think that this Cassidy is as big a rascal as ‘ Bed Jim ’ McDermott, and a bigger rascal.”

Upon the trial the plaintiff was permitted to prove, under objection, certain articles published in the defendant’s newspaper some years anterior to the article in question, in which the defendant animadverted in strong terms upon the character of McDermott. The objection was that the testimony was incompetent, immaterial and irrelevant; that it had not been averred in the complaint as to what McDermott’s character was, and there was no averment therein of any extrinsic fact making it proper to intro duce such articles in evidence. The court admitted the evidence because, as he said, the libelous article contained an allegation that plaintiff was a greater rascal than McDermott, and the natuural force of the expression was that McDermott was a rascal, and that plaintiff was a greater rascal than McDermott, and the kind of rascal that McDermott was the defendant disclosed in these articles, and the court held it was not such new matter that required to be pleaded.

The original article complained of by plaintiff was without doubt libelous. As the court remarked, the natural meaning of the language used was that McDermott was a rascal, and that plaintiff was a bigger rascal than McDermott. Plaintiff had made out his cause of action when he proved the publication of the article by defendant.

The plaintiff desired to go further, and to prove what kind of a rascal McDermott was in the estimation of defendant. This was, as it seems to us, an enlargement of the libel itself, and in order to be admissible should have been averred in the complaint. If the plaintiff did not choose to rest alone upon the libelous eharacfer of the article as it was published, but wished to show what kind of a rascal the defendant charged McDermott was, it appears to us that the complaint should have contained such an averment in order to let in the proof.

It was not admissible upon the question of malice or damages without being pleaded. If the prior articles showed that the defendant had stigmatized McDermott as being a traitor, murderer, thief or assassin, they did not in and of themselves have any bearing upon the plaintiff or his character. It was only when read in connection with the article counted upon as libelous that they would appear to have any connection with the plaintiff. And in such case the only effect of such proof would be to show what in fact was the character of the libel counted upon. And unless pleaded, evidence amplifying and enlarging the libel itself would be in such case given, while no averment existed charging or setting forth the real libel upon which damages were sought to be recovered.

It is not like the case of proving the repetition of a slander similar to that counted upon in a complaint, but at times not therein set forth.

The rule in such cases is that the same or similar words counted on in the complaint, and spoken before the commencement of the-action, may be given in evidence. The words must be the same or similar to those counted on. Howard v. Sexton, 4 N. Y., 157; Frazier v. McCloskey, 60 id., 337; Daly v. Byrne, 77 id., 182; Root v. Lowndes, 6 Hill, 518, The prior publications contained no libel upon the plaintiff, and did not refer to him directly or indirectly. To allow proof of them for the purpose of showing malice would be, as I have said, no more than enlarging by proof the character of the libel, while making no averment in regard to it, or, in other words, it is an effort to enhance damages by showing other publications against a third person in order to show how big a rascal McDermott was in the estimation of defendant.

I think that to admit such proof under a pleading which simply sets forth the libelous article complained of would be unjust to the defendant, because it would naturally be a surprise to him. It would be trying a matter of which the plaintiff had not complained, and in regard to which the defendant ought not to be called upon to defend.

It is true the plaintiff by this evidence only seeks to prove the kind of rascal that defendant had itself charged against Mc-Dermott. But the charges against McDermott were separate articles which had been published years before the one complained of, and at that time had no relation to plaintiff.

If plaintiff should desire to aggravate his damages _ by proof which in effect goes to enlarge the character of the libel itself, there is no injustice in compelling him to apprise defendant of such intention in his pleading.

He ought not to be allowed in effect to add to the natural and legal effect of the libel as it appears on its face, by this kind of proof, without setting up the facts which form a basis for such addition. 1 do not see that this rule is at all altered by the fact that the article as published was libelous per se. In publications which are not thus defamatory, and become so only upon reference to some facts outside, those facts must be averred. When a publication is defamatory upon its face, if the plaintiff desire to enlarge its scope and aggravate "its meaning by proof of facts tending in that direction, it seems to us that such facts should be set forth, upon the same principle which compels such averment when the article in and of itself is not libelous. In the one case facts are to be shown which render the publication actionable, while in the other facts are offered in proof for the purpose of enlarging the scope of an article, and making it more strong than it appears on its face. The same rule should apply.

For this error we think the judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur, except Andrews, Ch. J., not voting.  