
    AUGUSTIN DALY, Plaintiff and Respondent, v. CHARLES A. BYRNE, Defendant and Appellant.
    I. Trial, conduct of. Appeal.
    1. General objection.
    
    
      (a) What can be raised under on appeal.
    1. Such objections only, which, if specified, would have been decisive of the case, and could not have been met or obviated at the trial.
    
      Í.B. gr., In an action of libel, plaintiff, to prove malice, offered three subsequent publications by defendant, which were received under a general objection ; on appeal, defendant urged that, malice being presumed, the only effect of these publications was to enhance damages, and they, being per se libellous, could not be used for that purpose.
    
      Decided January 14, 1878.
    Held,
    these grounds of objection could not, under the above principle, be entertained on appeal.
    H. Litebaby bights.
    1. Drarnatitgction of a novel.
    
    
      (a) Right to. One has a right to dramatize a novel, and such . dramatization becomes his property, though there appears in it substantial similarity in plot, situation, and incidents to the . novel.
    1. Ergo. In an action of libel grounded on a charge made by defendant, that plaintiff had committed a fraud by producing a play and claiming to be the author of it, when in fact it was written by another person, arid sent to him for examination, and wrpngfully retained by him and produced as his own, evidence that the play, being a dramatization by the plaintiff of a novel, is substantially similar to the novel in plot, situation, and incident, is inadmissible.
    HI. Tbial, conduct of. Appeal.
    1. Bemarlcs of the judge in passing on questions arising on the trial.
    
    
      (a) Case on appeal must show what, to call fob a new
    TBIAL.
    1. It must show how the remark came to be made, in what way and in what connection it was called forth, so that the appellate court can see wherein, if at all, the appellant was injured.
    
      % Exceptions to refusals to charge.
    
    
      (a) Genebal exception baises nothing fob the appellate
    COUBT TO ACT UPON.
    1. So held of an exception in this form: “I also except to your honor’s refusal to charge our requests.”
    IV. Damages, excessive, what not.
    1. In an action of libel, $3,689.73 held not excessive.
    V. Libel.
    
      Vide divisions I, II, HI, supera.
    
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    Appeal by the defendant from a judgment for $2,689.73, entered upon a verdict in plaintiff’s favor, and also from an order denying a motion for a new trial, and also from an order denying a motion to set aside the verdict of the jury.
    
      Lockwood & Post, attorneys, and Louis F. Post, of counsel, for appellant, urged :
    —I. The first exception, the benefit of which is claimed by appellant, is to the admission of the article published in No. 15 of The Dramatic News. (1.) The articles in suit, if untrue, were libelous per se, and in contemplation of law malicious ; and as no proof to negative the legal presumption of malice would have been allowed, so none should have been taken to prove malice, except such as would have been also admissible in aggravation of damages. Malice, as a part of the cause of action, being already conclusively presumed (See Townshend on Slander and Libel, 3rd Edition, § 176 ; Id. 132, note 1; Daly v. Byrne, 1 Abb. N. C. 15, and note), the only effect of the proof excepted to was to enhance damages, and all the authorities are agreed that no subsequent publication can be used for this purpose (See Burson v. Edwards, 1 Carter [Ind.] 164; Forbes v. Myers, 8 Blackf. [Ind.] 74; Mix v. Woodward, 12 Conn. 292-3). (2.) The article admitted to prove malice, is itself libelous per se (See Townshend on S. & L. 3rd Ed. § 176), and to admit it in this action, is to render defendant liable to double punishment, as the same article may be made the basis of another action (Mix v. Woodward, 12 Conn. 292-3; Frazier v. McCloskey, 60 N. Y. 337; Root v. Lowndes, 6 Hill, 518; Titus v. Sumner, 44 N. Y. 266 ; Runkle v. Butler, 7 Barb. 260). (3.) If this article was considered by the jury in aggravation of damages, still it would not bar a suit upon the article itself as a substantive cause of action (Campbell v. Butts, 3 N. Y. 173).
    II. The next exceptions are to the admission of articles published in Nos. 18 and 35 of The Dramatic News, respectively. (1.) The observations in Point I. also apply to these exceptions. (3.) These articles appear on their face to have been published after the commencement of the action, and on that ground alone were inadmissible (Frazier v. McCloskey, 60 N. Y. 337).
    III. A witness was asked respecting the similarity of “Pique” to “Her Lord and Master.” The questions were objected to and excluded, and defendant excepted. Prior to the offer of this proof, plaintiff had put in evidence, under defendant’s objection and exception, and in proof of malice, an article published by defendant, charging this similarity. The questions were material, if this article was properly admitted, to prove the truth of the latter. We concede that this would be trying a collateral issue, but claim that the error was in opening .the door (See Point II.). As. the issue was raised by plaintiff, we had the right to meet it. It is the province of this court to determine which ruling was erroneous ; both cannot be correct.
    IV. The plaintiff introduced in evidence (objection and exception taken), an article from. the New York World, purporting to be a letter from “Eleanor Kirke, the reputed authoress of “Flirtation.” The letter, even if genuine, was immaterial; and if material, it was not proved to have been written by Mrs. Kirke ; and if it had been proved, it was incompetent testimony. The ground taken by the justice, that it formed a part of a letter to the defendant from plaintiff’s attorneys, is insufficient. No such letter appears in evidence, and if offered, might itself have been made the subject of objection.
    The fact, which we concede, that Mrs. Kirke’s letter in the “ World,” was referred to in a letter from plaintiff to defendant, which defendant published as a part of the libelous article (the second cause of action), has no effect. That article (the letter from plaintiff’s attorneys was a part of it) cannot be enlarged by extraneous matter, even though referred to in the article, except for purposes of explanation. No explanation was -necessary.
    Y. The defendant excepted to the refusal to admit in evidence in mitigation of damages, and in explanation of an exhibit of plaintiff, an article published in No. 24 of The Dramatic News. For the purposes of this argument, it is not claimed that this article could have been properly admitted if the plaintiff had not previously introduced in evidence an article from No. 25 of The Dramatic News. The article offered by defendant and excluded by the court, was published prior to plaintiff’s exhibit, and explains it. The two should have gone to the jury together.
    YI. In sustaining the objection referred to in Point Y., the judge said, in the hearing of the jury: “I could not admit that article in evidence. The idea that a man can one day blackmail another man in that way, and another day turn round and make another statement, will never do.” This remark may be considered in two aspects—(1) as in the nature of a charge to the jury ; and, (2) as improper influence exerted upon the jury during the trial of a cause. (1) If we consider the expression objected to as in the nature of a charge to the jury, it was erroneous (Vedder v. Fellows, 20 N. Y. 126; Burke v. Maxwell, 16 Albany L. J. 209). (2) If we consider the expression as an improper influence exerted on the jury in favor of a party pending a trial, we shall find the only questions to be: Whether any influence was exerted; whether it was improper; and, whethe. it was in favor of a party to the cause. Under the authorities this expression calls for a new trial (Thurman v. Chapman, 45 Barb. 98 ; Green v. Selfair, 11 How. Pr. 260 ; Cilley v. Bartlett, 19 N. H. 324 State v. Hascall, 6 Id. 352; Perkins v. Knight, Id. 474 ; Coster v. Merest, 3 Broderip & Bingham,, 272; Knight v. Inhabitants of Freeport, 13 Mass. 318). The case of Caldwell v. N. Y. Steamboat Co. (47 N. Y. 398), is not in conflict. In that case the jury had returned for instructions, when the circuit judge remarked that he thought there was not much difficulty in arriving at a conclusion. As the circuit judge had expressed no opinion on the merits, and given no intimation of what his opinion was, the court of appeals affirmed the judgment. The remark did not tend to prejudice either party against the other. This is the reason the appellate court did not interfere, and this is the only difference between the cited case and the case at the bar.
    VII. When the defendant had rested (having examined two witnesses upon the bad character of plaintiff), counsel for plaintiff stated that he had sent for witnesses on the question of plaintiff’s character, to which the court replied, in the hearing of the jury: “So far as regards the last witness, on the subject of character, you need not give yourself any • trouble about it.” To this remark, exception was taken. Here, again, the court erroneously invaded the province of the jury. It would have been proper to explain to the jury the principles which should guide them in weighing the testimony of a witness ; but it was for the jury alone to determine what weight to give to the testimony. The court had no right to say to the jury, or in their hearing of a witness whose testimony was pertinent to the issue, as the testimony of the witness referred to was, that they should not consider it,—and such was the clear import of the objectionable language (See authorities cited in Point VI.). It cannot be argued, to bring the case within some authorities, that this was a mere expression of opinion qualified by the judge in Ms charge when he explicitly left the question to the jury. He did leave to the jury, the question whether the defendant had proved bad character ; but he did not leave it to them to determine the credibility of this particular witness and the weight of his testimony. Taking the expression excepted to, together with the charge proper, the matter was left to the jury, in substance as follows ; You are to pay no attention whatever to the testimony of the witness Hallam, but may consider whether, upon the testimony of Brown, the other witness on character, the defendant has proved the plaintiff to be a man of bad character.
    Olin, Rives & Montgomery, attorneys, and Stephen H. Olin, of counsel, for respondent, urged :
    —I. The subsequent publications were properly received. The evidence offered was of the same character in each case, and offered for the same purpose, and the objections and exceptions were, except the first, in the same words, (a) The objections and exceptions state no ground. “ The rule is settled beyond discussion that a general objection will be disregarded” (Valton v. National Fund Life Assurance Co., 20 N. Y. 35 ; Shaw v. Smith, 3 Keyes, 316 ; McDonald v. North, 47 Barb. 532 ; Requa v. Holmes, 16 N. Y. 201; Chester v. Dickerson, 54 Id. 13 ; Levin v. Russell, 42 Id. 255; Somerville v. Crook, 9 Hun, 668 ; Frazier v. McCloskey, 60 N. Y. 339). (b) The evidence was properly received as proof of malice and in aggravation of damages. The rule is in England well settled that other publications by the defendants are admissible to show actual malice (Folkard on Libel and Slander, 459 ; Barnett v. Levy, 3 H. L. 395, 414; Barnwell v. Adkins, 1 M. & Gr. 807). And this although such publications are subsequent to the bringing of the action (Pearson v. Le Martin, 1 Scott N. C. 607. See also Macleod v. Wakley, 3 C. & P. 311; Folkard on Libel and Slander, 460; Camfield v. Bird, 3 Car. & Kin. 56; Chambers v. Robinson, Str. 691). Exactly in point is Chubb v. Westly (6 C. & P. 436). There is in this State some apparent conflict of decision (Bissell v. Elmore, 48 N. Y. 564; Thorn v. Knapp, 42 Id. 478). This case is distinguishable from Frazier v. McCloskey (60 N. Y. 337). In that case the charge made by defendant to the admission of which exception was taken was actionable per se. In the case at bar the articles complained of, or at least parts of each of them, would not have sustained an action, since they were within the bounds of legitimate criticism, while they showed, nevertheless, hostility and malice toward the plaintiff (See also Thomas v. Croswell, 7 Johns. 269 ; Defries v. Davis, 7 Car. & Payne, 112). (c) The learned judge in his'charge directed the jury on this point properly and as requested by the defendant, thereby preventing the evidence admitted from having any improper effect.
    II. The questions as to the resemblance between the play “ Pique” and the novel “Her Lord and Master” were properly overruled. The three objections were properly sustained, (a) Ho authority exists for permitting a witness to state the resemblance between two writings, neither of which is in evidence, though both are within the reach of subpoena. The questions called for statements of the contents of writings not produced, and worse still, for the conclusion of the witness in regard to them. The rule heretofore followed in similar cases, is to cause the writings to be read in court (Reade v. Sweetzer, 6 Abb. Pr. N. S. 9 ; Toole v. Young, Corylon on Stage Right, 84 ; Strauss v. Francis, 4 Fost. & F. 939, 1107). The rule allowing witnesses to compare absent objects has always been based by the courts on necessity (Hotchkiss v. Germania Ins. Co., 5 Hun, 90; De Witt v. Barly, 17 N. Y. 342; Com. v. Sturtevant, 117 Mass. 122). Ho such necessity exists here. (5) The witness was not competent to give the testimony asked for. He had never read “ Pique,” and had seen it acted only once, a year and four months before the trial. It did not appear when he had read “Her Lord and Master.” Hence no foundation had been laid for his testimony, (c) The evidence sought was wholly immaterial (Townshend on Libel, 3rd Ed. 679 ; Fitzgerald v. Stewart, 53 Penn. 343; Fountain v. West, 23 Iowa, 9 ; Andrews v. Vandeuser, 11 Johns. 38; Lamos v. Snell, 6 N. H. 413; Daly v. Munro, Sup. Ct. Sp. T 1876; Reade v. Conquest, 11 C. B. (N, S.) 479 ; Boucicault v. Fox, 5 Blatchf. 87). It was inadmissible in mitigation of damages (Dolevin v. Wilder, 34 How. Pr. 488). Nor could the evidence be offered to show the bad character of the plaintiff (Townshend on Slander and Libel, 3rd Ed. 679, § 407; Inman v. Foster, 8 Wend. 602; Kennedy v. Gifford, 19 Id. 296 ; Mapes v. Weeks, 4 Id. 659 ; Watson v. Bush, 5 Cow. 499 ; Fitzgerald v. Stewart, 53 Penn. 343 ; Fountain v. West, 23 Iowa, 9 ; Andrews v. Vandeuzer, 11 Johns. 38; 1 Greenl. on Evidence, § 55 ; Lamos v. Snell, 6 N. H. 413). id) Bor was the evidence material to prove statements in the articles from defendant’s paper not sued on. If the evidence had been offered for this purpose, counsel should have so stated on the trial, and cannot now take advantage of this ground (Cases cited, infra).
    
    III. The letter from the World was properly received. It had been read by the defendant, and had been referred to in the letter of plaintiff’s attorneys written after the first, and printed in the second libelous article (supra).
    
    IV. The article offered by defendant was properly excluded (Townshend on Slander and Libel, 3rd Ed. 687, and cases cited; Hotchkiss v. Olyphant, 2 Hill, 510).
    Y. The remarks of the court were not subjects of exception. They were proper, and the charge prevented any possible injury from them.
    VI. The damages were not excessive (Fry v. Bennett, 9 Abb. Pr. 45 ; Coleman v. Southwick, 9 Johns. 45 ; Southwick v. Stevens, 10 Id. 443 ; Knight v. Wilcox, 18 Barb. 212).
   By the Court.—Curtis, Ch. J.

—The plaintiff, a theatrical manager, sues the defendant, the editor of a weekly publication, called The New YorJc Dramatic News, to recover damages for publishing two articles, charging him with committing a fraud by producing a play, and claiming to be the author of it, when in fact it was written by another person, and sent to him for examination, and wrongfully retained by him, and produced as his own.

The answer is a general denial, except as to the publication of the first article. It also presents, as pleas in mitigation of damages, that one Wheeler had so informed the defendant, and that the publication was without malice, and that plaintiff’s character as a dramatic author was bad, and that he plagiarized from the productions of other people ; also that the play in question was plagiarized without material change from Miss Florence Maryatt’s novel, “Her Lord and Master also that he was willing to publish any statement the defendant chose to make, with the same publicity that he had given to the alleged libel.

The plaintiff offered in evidence as proof of malice four articles, subsequently published in The Dramatic News. To three of these, the defendant simply objected, assigning no ground of exception, and excepted to the ruling of the court. To the other article, being the first offered, the defendant objected to plaintiff’s putting in evidence, subsequent articles to those in the complaint, unless the plaintiffs would allow the entire matter contained in The Dramatic News, relating to the plaintiff, to go in evidence. The defendant now claims that the court erred in admitting these articles, because malice being already conclusively presumed, their only effect was to enhance damages, for which no subsequent publication could be used, and further, that the articles being per se libelous, that to admit them in this action is to render the defendant liable to double punishment, as the same articles may be the basis of another action.

It was but just to the judge before whom the trial was being conducted, that these grounds of objection should have been stated to him, so that his attention would have been specifically directed to the reasons for the defendant’s objections. If the defendant elected not to pursue this course, when he made these objections at the trial, where there was an opportunity of meeting them, or obviating them, he is too late in first assigning his grounds^ before the appellate court (Levin v. Russel, 42 N. Y. 255; Chester v. Dickerson, 54 Id. 13).

The defendant excepts to the rulings of the court, sustaining the objections of the plaintiff to the questions addressed to the defendant, asking him if he can state the differences between the plot of “Pique” the play, and the plot of the novel “Her Lord and Master,” and if there is any difference, except in names, between the characters in the two, and if the situations and incidents are not substantially the same.

This evidence sought to be introduced was immaterial. The plaintiff had a right to dramatize the novel, and such dramatization became his property, though there appeared in it substantial similarity in plot, situations and incidents, to the novel.

If the defendant had been competent, and had given testimony to this effect, it would not have established anything either relevant to the issue or in mitigation of damages, and it was properly excluded.

The defendant offered in evidence a statement, published in The Dramatie News, after the commencement of this action. If the statement had been a withdrawal of the charges made, and had been intended as some reparation for the injury done, it would have been admissible in mitigation of damages. But the statement discloses no such intention on the part of the defendant, and the exclusion of it by the court is in accordance with the views expressed by Ch. J. Nelson in Hotchkiss v. Oliphant (2 Hill, 516). In sustaining the objection of the plaintiff’s counsel, the judge said, in the presence of the jury : - “I could not admit that article in evidence. The idea that a man can one day blackmail another man in that way, and . another day turn round and make another statement, wall never do.” The defendant excepted to this remark, and claims that it is to be considered as a charge to the jury, or as improper influence exerted upon them during the trial of a cause. It is clearly no part of a charge to the jury, and appears to have been called out by something stated by counsel, but which is not contained in the printed case. There is nothing in the pleadings to which the term “blackmailing” is relevant, and it may have referred to some hypothetical statement made by counsel. If the defendant was prejudiced by this observation of the court in sustaining the objection after a discussion between counsel, the case should disclose in what way, or in what connection it was called forth, so that the appellate court can- see wherein, if at all, he was injured by its utterance in the presence of the jury. In determining what is admissible as evidence, both the. court and counsel, in their consideration and discussion of questions, are uncontrolled by the presence of the jury, who are in no respect parties to the matter. The defendant, perhaps, with greater reason could complain that the reading of the not very mild language of Ch. J. Nelson, in the analogous case above cited, if it had been done at the time, exerted an improper influence upon the jury. In the charge that was made to the jury, there is nothing in this behalf stated unfairly by the court, or objected to by the defendant. To select a remark by the court to counsel, in the course of passing upon a question as to the admissibility of evidence ; and then, without connecting it with the issue, but in its isolated form, to claim that there may be a surmise based upon it that influenced the jury, is an insufficient reason for granting a new trial.

The defendant excepted to another remark of the court which was made during the progress of the trial, not only in the presence, as in the preceding instance, but in the hearing of the jury. The plaintiff’s counsel stated that he had sent for witnesses on the question of the plaintiff’s character, to which the court replied, “ So far as regards the last witness on the subject of character, you need not give yourself any trouble about it.”

What has been said in the preceding paragraph applies, to some extent, to this. This remark was addressed to counsel, and is claimed by the defendant to be equivalent to directing the jury to disregard the testimony of this witness. The case shows that the memory of the witness referred to failed so much on his cross-examination, that what was said to the counsel by the court in reply, must have been quite apparent to the jury, whether they heard this conversation or not. The charge in respect to this witness was of a character to prevent any injury from the remark, and in this respect appears not to have been excepted to by the defendant.

There is no valid exception to the charge. The court charged all the defendant’s requests but one, and when the court declined to charge that, no exception was then taken. At the close of the defendant’s requests to charge, which were some ten in number, and after his exceptions to the charge, the defendant stated: “I also except to your Honor’s refusal to charge our requests.” It is said by Allen, J., in Ayrault v. Pacific Bank (47 N. Y. 476), that the court of appeals had uniformly held that exceptions in this form present no question for review.

The question whether the damages given are not excessive, is one that is not easily determined. But after such consideration as I have been able to give it, and in view of the fact that the publications were in a theatrical journal, circulating especially among those upon whom the plaintiff relied for his reputation and his business, and were of a character to injure him among them, I cannot say that the jury, after a full hearing of the testimony, were not the best judges of the amount of damages that should have been awarded to the plaintiff, or that they transcended the limits of a proper discretion in their verdict. The publications complained of by the plaintiff exceed the limits of just criticism. To be wrongfully held up to the public as the perpetrator of a literary fraud, and as wrong - fully retaining and using the production of another, is a grave accusation. The wrong and the injustice are not easily measured pecuniarily. Nor can it be entirely overlooked, that where the courts fail to afford adequate redress, the public peace is liable-to be disturbed by the acts of the sufferer, seeking violently to redress his wrongs.

The judgment and orders appealed from should be affirmed, with costs.

Sanford and Freedman, JJ., concurred.  